Environment Protection Authority v O'Brien

Background

1. Much of the factual background to the charges is uncontentious. The parties provided a statement of agreed facts dated 28 September 2022 ('SOAF') which I adopt pursuant to s 191 of the Evidence Act 1995 (NSW) ('Evidence Act') and, for concision, summarise below before turning to my consideration of the evidence tendered and submissions made to this Court.

Context for the offences

1. Mr O'Brien is the former sole director, shareholder and company secretary of Rubbish King, a company which operated a waste treatment facility located at 13 Lucca Road, North Wyong ('13 Lucca Road'). Rubbish King was deregistered on 4 November 2018.
2. Neither Rubbish King nor Mr O'Brien have ever held an environment protection licence under the POEO Act authorising the receipt, storage or processing of waste, including asbestos waste, at 13 Lucca Road.
3. Each offence materialised in the context of the carrying out of a residential development at 2 Arcadia Road, Glebe ('2 Arcadia Road'), a property owned by The Trustees of the Sisters of the Good Samaritan ('Trustees').
4. In June 2016, the Trustees retained Troppo Pty Ltd ('Troppo Architects'), a company of architects, as the managing architect (and designer) of the proposed residential development at 2 Arcadia Road. In August 2016, the Trustees entered into a contract with Forte NSW as the head building contractor for the proposed development ('Head Contract').
5. On or about 20 September 2016, Forte NSW identified that the soil to be excavated from the basement level at 2 Arcadia Road was potentially contaminated with asbestos and consequently engaged Ground Technologies Pty Ltd ('Ground Technologies') to conduct a geotechnical investigation and waste classification. Reports produced by Ground Technologies on 29 September and 5 October 2016 identified the top layer of soil to be excavated (amounting to approximatively 700 tonnes) as "General Solid Waste - Asbestos Contaminated Material" ('ACM').
6. Forte NSW sought tenders for the bulk excavation works, including for the removal of the ACM. On 8 October 2016, JJD submitted a quote for $188,085 for the bulk excavation works, including for the disposal of 700 tonnes of ACM at $110 per tonne, totalling $77,000.
7. On or about 18 October 2016, Forte NSW contracted with JJD on terms according with its quote ('Subcontract'). In particular, the Subcontract specified that JJD was to "[a]llow for Certification to ensure all materials/spoil including Asbestos Contaminated Material have been removed and disposed of in an appropriate manner as required."
8. JJD in turn contracted with Compliance Health and Environmental Consulting Pty Ltd ('CHEC') to provide an asbestos clearance certificate following the removal of the ACM from 2 Arcadia Road. After further inspection, CHEC identified a further 520 tonnes of "general solid waste - asbestos", which meant that the total amount of ACM to be disposed of amounted to 1,220 tonnes.
9. Suez was the holder of an environment protection licence that permits the disposal of asbestos waste at a landfill known as "Raymond Terrace Resource Recovery Park" at 330 Newline Road, Raymond Terrace ('Landfill'). Rubbish King has never held an equivalent licence and, at the time of the events the subject of the charges, had been prohibited by a prevention notice issued on 30 September 2016 ('Prevention Notice') by the Environment Protection Authority ('EPA') from receiving or storing any waste at 13 Lucca Road.
10. The evidence at trial established that the entirety of the ACM was removed from 2 Arcadia Road, by a series of trucks by the end of November 2016.
11. Troppo Architects subsequently came into possession of some weighbridge dockets (also referred to on occasions as 'tip dockets') purportedly issued by Rubbish King which seemingly attested to Rubbish King's removal of the ACM from 2 Arcadia Road ('RK weighbridge dockets').
12. Caroline Comino, an architect at Troppo Architects, noticed that the RK weighbridge dockets were unusual and attempted to contact Rubbish King to confirm the circumstances and manner of their production. Her attempts were unsuccessful as the phone number she used to contact Rubbish King was disconnected. She then searched Rubbish King online and found an EPA media release regarding the Prevention Notice issued by the EPA to Rubbish King. Later, on 12 December 2016, Ms Comino sent Sean Joyce of the EPA a photograph of three of the RK weighbridge dockets, dated 1 and 2 November 2016.
13. In response to a request by Forte NSW for (better) documentary proof of the lawful disposal of the ACM, on 21 December 2016, Mr Daley of JJD provided, by email to Mr Henwood of Forte NSW, a letter which on its face was from Rubbish King and stated that Mr O'Brien had represented to JJD that Rubbish King was authorised to receive the waste and had provided amended RK weighbridge dockets describing the waste received as "GSW Contaminated Asbestos Wast[e]". JJD's letter of 21 December 2016 (received in hard copy by Forte NSW on 22 December 2016) also enclosed a letter displaying a Rubbish King letterhead addressed "To whom it may concern" ('Rubbish King letter'), and stating: "Rubbish King Pty [L]td functioning waste transfer station at 13 Lucca Rd Wyong is currently a registered and DA approved site acting under DA/624/1997/A. Between the dates of 21/10/2[0]16 and 02/11/2016 JD Works have been tipping GSW contaminated asbestos waste at this facility. Totaling [sic] 1220 tonnes. Waste material was removed from site address 2 Arcadia Rd Glebe NSW under Geotechnical report GTE965 dated 29 September 2016."
14. The letter went on to assert that the Prevention Notice did not prevent Rubbish King from receiving waste until 9 November 2016 and disclosed that "the waste was transported in B doubles to our contaminated treatment facility in Singleton." The letter was stated to be from "Adam O'Brien Managing Director", but there was no signature.
15. On 23 December 2016, Mr Henwood of Forte NSW emailed Mr Daley of JJD and Mr O'Brien again requesting proof of Rubbish King's lawful authority to receive the ACM.
16. In his record of interview with the EPA, Mr Henwood of Forte NSW stated that he spoke with Mr O'Brien over the phone "early in the [2017] new year", being prior to 6 January 2017 on mobile phone number "xx15 xx8 301" and reiterated his request for evidence of the lawful disposal of the ACM.
17. The mobile phone number "xx15 xx8 301" is a Telstra Limited mobile number registered to Adam O'Brien at an address in Port Macquarie (hereafter referred to as the mobile 'number ending in 301').

The first and second offences - the False Invoice and the False Remittance Advice

1. On 6 January 2017 at 6.46am, Mr Henwood of Forte NSW received an email from the address "king@xxubbishking.xx.au" with the subject title "Absolutely everything", and which contained a signature block "Adam O'Brien xx15 xx8 301". The email attached a PDF titled "SCN_0001" comprising: 1. three invoices purportedly issued by "Suez Raymond Terrace Resource and Recovery Park Pty at 330 Newline Road, Raymond Terrace NSW 2324" to Rubbish King for the disposal of the ACM at the Landfill dated 30 September 2016, 28 October 2016, and 25 November 2016. The invoice dated 25 November 2016 with invoice number "SUEZ0016578" is the false invoice which is the subject of the first charge against Mr O'Brien (False Invoice); and 2. three remittance advices dated 1 October 2016, 1 November 2016, and 1 December 2016, purportedly issued by Rubbish King for payment of each of the invoices. The remittance advice dated 1 December 2016 was issued purportedly in acknowledgment of payment of the False Invoice and is the document the subject of the second charge against Mr O'Brien (False Remittance Advice).
2. The False Invoice contained information about dates, quantities, and redacted unit prices pertaining to the disposal of the ACM at the Landfill operated by "Suez Raymond Terrace Resource Recovery Park".
3. This information in the False Invoice, taken together in all the circumstances, was information about waste, namely information about the disposal of the ACM at the Landfill.
4. All the information contained in the False Invoice was false or misleading in a material respect because, first, the ACM was not disposed of by Rubbish King at the Landfill; second, no other waste from any premises was disposed of by Rubbish King at the Landfill in November 2016; third, the False Invoice was never issued by Suez to Rubbish King; and fourth, the False Invoice falsely substantiated the lawful disposal of the ACM by Rubbish King at the Landfill, which was a requirement under the Subcontract for payment of monies due for the transport and disposal of the ACM.
5. The False Remittance Advice also contained information about dates, quantities, redacted prices, and the purported payee entity being "Suez Raymond Terrace Resource Recovery Park".
6. This information in the False Remittance Advice, taken together in all the circumstances, was information about waste, namely information about the disposal of the ACM at the Landfill.
7. All the information contained in the False Remittance Advice was false or misleading because, first, the ACM was not disposed of by Rubbish King at the Landfill; and/or, second, there was no other waste from any premises that was disposed of by Rubbish King at the Landfill in November 2016; third, there was no money ever remitted by Rubbish King to Suez for any waste disposed of by Rubbish King at the Landfill; fourth, the invoice referred to in the False Remittance Advice was never issued by Suez to Rubbish King; fifth, the False Remittance Advice was never supplied by Rubbish King to Suez; and sixth, the False Remittance Advice falsely substantiated the lawful disposal of the ACM by Rubbish King at the Landfill, which was a requirement under the Subcontract for payment of monies due for the transport and disposal of the ACM.

The third offence - the False Email

1. After receiving an email on 6 January 2017 at 10.56am from "king@xxbbishking.xx.au", Mr Henwood sent an email to the address "king@xxbbishking.xx.au" and to Mr Daley, requesting further evidence that either Rubbish King or Suez was licensed to receive or store the ACM.
2. Shortly thereafter, on 6 January 2017 at 10.58am, Mr Henwood received a response in the form of an email from the address "admin@xxbbishking.xx.au" with the subject title "Confession", and which contained the signature block "Adam O'Brien xx15 xx8 301". This email forwarded an earlier email sent from "king@xxbbishking.xx.au" on 6 January 2017 at 10.46am, which also contained the signature block "Adam O'Brien xx15 xx8 301". The forwarded email copied an email purportedly sent by Duncan Le Good (an employee of Suez) from the address "Lego, Dean" "xxan.lego@suez.xx" on 25 October 2016 at 1.58pm (False Email). That email was falsified and is the subject of the third charge.
3. The False Email stated: "Based on the Geotechnical Report GTE965 dated 5 October 2016 I can confirm that the Suez Newline Road landfill can receive the materials in question for disposal - $215 per tonne + GST."
4. It further displayed the signature block of "Duncan Le Good" which recorded his mobile phone number as "+61 (0) xx9 xx6 435" and email as "xxan.lago@suez.xx".
5. As it transpires, the False Email falsified the content of a real email that had been sent by Mr Le Good (of Suez) to Mr O'Brien at a later date on 3 January 2017 at 1.59pm ('Real Email'). The Real Email was sent from Mr Le Good's email address "xxncan.legood@suez.xx" which also had the signature block of Mr Le Good.
6. The False Email is the subject of the third charge against Mr O'Brien. It contained information about waste, namely the disposal of the ACM at the Landfill and the costs that would entail.
7. The information contained in the False Email was false or misleading in a material respect because, first, Mr Le Good did not send the False Email to Mr O'Brien on 25 October 2016 at 1.58pm; second, the False Email listed Mr Le Good's email address as "xxan.lego@suez.xx" and "xxan.lago@suez.xx", when Mr Le Good's email address was in fact "xxncan.legood@suez.xx" as listed in the Real Email; third, the False Email listed Duncan Le Good's mobile phone number as "+61 (0) xx9 xx6 435" (hereafter referred to as the mobile 'number ending in 435'), where Mr Le Good's mobile phone number was in fact "+61 (0) xx7 xx3 044" as listed in the Real Email; and fourth, the information in the False Email falsely substantiated the circumstances surrounding the lawful disposal of the ACM by Rubbish King at the Landfill, which was a requirement under the Subcontract for payment of monies due for the transport and disposal of the ACM.
8. The effect of the falsified earlier date in the False Email (stated to be "25 October 2016") was to create an impression that the quote had been sought and received by Rubbish King from Suez prior to the dates when the ACM was transported from 2 Arcadia Road in late October and early November 2016.
9. The effect of the falsified email address and mobile phone number for Mr Le Good in the False Email would have been to frustrate any attempts to contact Mr Le Good to verify the quote for the disposal of the ACM, including the date of the quote.
10. The second email to Mr Henwood on 6 January 2017 (received at 10.58am) also enclosed the first two pages of Suez's environment protection licence for the Landfill and further copies of the Invoices and the Remittance Advices.

The fourth offence - the False Delivery Dockets

1. On 17 January 2017, Mr Henwood emailed Troppo Architects making a claim (on behalf of Forte NSW) for payment under the Head Contract, and attaching documents including the False Invoice, the False Remittance Advice, and the False Email.
2. Three days later, on 20 January 2017, Ms Comino of Troppo Architects requested that Forte NSW provide the tip dockets issued by Suez to confirm the disposal of the ACM at the Landfill.
3. At some time between 20 January 2017 and 24 January 2017 Mr Daley received 41 weighbridge dockets purportedly issued by Suez recording the delivery of a total of 1,553.665 tonnes of asbestos waste by Rubbish King to the Landfill between 9 November 2016 and 10 November 2016 (False Delivery Dockets). The False Delivery Dockets are the subject of the fourth charge against Mr O'Brien.
4. On 24 January 2017 at 12.37pm, Mr Daley sent Mr Henwood an email attaching a PDF document titled "Josh Daley_scan.pdf" which comprised the False Delivery Dockets. Later, on 24 January 2017, Mr Daley hand-delivered the originals of the False Delivery Dockets to Mr Henwood, who in turn delivered them to Troppo Architects.
5. The False Delivery Dockets contained information including, first, details of the issuing entity being "SUEZ Recycling & Recovery Pty Ltd" and the address of the Landfill as "330 Newline Road Raymond Terrace NSW 2324"; second, a description header of each of the dockets as "Delivery Docket"; third, dates and times of deliveries; fourth, a description of the product delivered as "GSW Contaminated Asbestos Waste"; fifth, the registration numbers of delivery vehicles; and sixth, gross and tare (and net) weights of the waste delivered.
6. The information contained was information about waste, namely the purported disposal of the ACM at the Landfill.
7. The False Delivery Dockets are very similar to the RK weighbridge dockets (that had been previously purportedly issued by Rubbish King and had come into the possession of JJD, Forte NSW, and Troppo Architects) in their design, format, font, and information.
8. All the information in the False Delivery Dockets was false or misleading in a material respect because, first, the ACM was not disposed of by Rubbish King at the Landfill; second, there was no other waste from any premises that was disposed of by Rubbish King at the Landfill in November 2016; third, the False Delivery Dockets were not issued by Suez; and fourth, the information in the False Delivery Dockets falsely substantiated the lawful disposal of the ACM by Rubbish King at the Landfill, which was a requirement under the Subcontract for payment of monies due for the transport and disposal of the ACM.

The EPA's investigation

1. On 20 January 2017, the EPA issued a notice to provide information and/or records under s 191 of the POEO Act to Suez (Notice 1548639) requiring information and records about any dealings between Suez and Rubbish King for the period 30 September 2016 to 20 January 2017 inclusive. In response, Suez provided the EPA with copies of the genuine weighbridge dockets that it ordinarily issues at the Landfill, which bear little resemblance to the False Delivery Dockets allegedly provided by Mr O'Brien to Mr Daley.
2. On 14 February 2017, the EPA also issued a notice to provide information and/or records under s 191 of the POEO Act to Troppo Architects (Notice 1549240), in response to which it received the False Invoice, the False Remittance Advice, and the False Delivery Dockets.
3. On 28 February 2017, the EPA executed a search warrant at 13 Lucca Road, the location of the waste transfer station that had previously been operated by Rubbish King. The premises were found to be abandoned and evidence was collected, including copies of the RK weighbridge dockets that had come into the possession of Troppo Architects. However, the False Invoice, the False Remittance Advice, and the False Delivery Dockets ('Suez weighbridge dockets') were not located during the search.
4. On 13 March 2017, the EPA issued a notice to provide information and/or records under s 191 of the POEO Act to Forte NSW (Notice 1550081), in response to which it received copies of various email correspondence exchanged between JJD, Rubbish King, Troppo Architects, and Forte NSW over the relevant period and included the False Invoice, the False Remittance Advice, the False Email, and the False Delivery Dockets.
5. The EPA did not issue s 191 notices to provide information and/or records to either Rubbish King or Mr O'Brien.

Evidence

1. The evidence comprised the following: 1. SOAF; 2. Transcripts of records of interview with the EPA of Luke Daley on 20 June 2017; Joshua Daley on 7 September 2017; and Mr Henwood on 11 May 2017; 3. Documents shown to Mr Henwood, Mr Daley, and Luke Daley during their interviews; 4. Affidavits of Steven Christopher James sworn 10 January 2020 (and exhibits thereto); Sean James Joyce sworn 15 July 2020; Melissa Moore sworn 18 December 2020; Tristan Hinchcliffe affirmed 29 January 2021; Arthur Michael Henwood sworn 5 August 2020; Caroline Peta Comino affirmed 16 July 2020; Leon Grosso sworn 20 August 2020; and Duncan Le Good sworn 13 September 2020 (noting that only parts of these affidavits were read); and 5. Further documentary evidence comprising a screenshot of Mr Daley's mobile phone showing the contact details saved in relation to Mr O'Brien; schedules prepared pursuant to s 50 of the Evidence Act of telecommunication records relating to the number ending in 301 registered to Mr O'Brien, including incoming calls from Mr Daley to Mr O'Brien; outgoing calls from Mr O'Brien to Mr Daley; incoming calls from Mr Henwood to Mr O'Brien; and outgoing calls from Mr O'Brien to Mr Henwood; various emails; extensive documentary material produced by Suez, Troppo Architects, and Forte NSW.
2. I will provide a summary of the evidence given by the witnesses called at the trial and other factual material upon which my decision is based. I note that I have considered the whole of the evidence, and where my summary omits certain details this is by no means indicative of a failure to consider any other aspect of the evidence relied upon by the parties.

Primary uncontested facts

1. It is convenient to record the following seven facts established by the SOAF (and specifically relied upon by the prosecutor) which I consider provide context facilitating my consideration of the further evidence and submissions provided: 1. Each of the False Invoice, False Remittance Advice, False Email, and False Delivery Dockets were purportedly sent by Rubbish King and Mr O'Brien; 2. Each of the False Invoice, False Remittance Advice, and False Email referred to the mobile phone number "xx15 xx8 301" being Mr O'Brien's mobile number; 3. The mobile phone number "xx15 xx8 301" was registered to Mr O'Brien; 4. Mr O'Brien was the sole director, shareholder and company secretary of Rubbish King, which at the relevant time operated the waste facility located at 13 Lucca Road; 5. Rubbish King was not authorised to receive asbestos waste at 13 Lucca Road; 6. The EPA seized from 13 Lucca Road copies of the same weighbridge dockets (that is, the RK weighbridge dockets) that had come into the possession of Troppo Architects sometime in November or December 2016, establishing a link between activities going on at those premises and the dealings of Rubbish King with JJD, Forte NSW, and Troppo Architects; 7. Mr Le Good of Suez had sent an email to Mr O'Brien on 3 January 2017 with the text of his email being falsified in the False Email.

Context of Mr Daley's involvement with the project at 2 Arcadia Road

1. At trial, Mr Daley of JJD gave evidence that he was engaged by Forte NSW to manage the excavation (and haulage) of soil at 2 Arcadia Road, that is, to coordinate the provision of contractors. Payment under the Subcontract required Mr Daley to issue Forte NSW with invoices and relevant weighbridge (tip) dockets for the waste removal in relation to which he sought to be compensated.
2. In this context, Mr Daley made arrangements with a number of haulage contractors. He gave evidence of a conversation with a contractor called "Ravi", a business acquaintance who operated a trucking company known as SSRA Holdings Pty Ltd, with a view to obtaining a quote for the removal of the ACM from 2 Arcadia Road after Mr Daley had secured JJD's Subcontract with Forte NSW. Ravi was said to have recommended the services of another contractor called "Basha", who was the director and operator of Allam Hauling Holdings Pty Ltd and who later became involved in the removal of clean soil from 2 Arcadia Road.
3. Ravi also recommended Mr O'Brien, and his company Rubbish King, as a potential contractor for the removal of the waste. As the following extract from the transcript of the trial provides, it remains unclear whether Ravi referred specifically to Mr O'Brien or merely to Rubbish King. His evidence was: "Q. How [did] Ravi come to say, "Contact Adam." or suggest Adam to you? What was the context of the conversation that Adam O'Brien was raised with you? A. How do I answer that? Ravi knew about the project because we'd spoken about it. And Adam's name came up as a contractor that could manage that material. Or, Rubbish King, specifically. HIS HONOUR: Do you say Rubbish King? Do you say is the company, and not Mr O'Brien, or Mr O'Brien? WITNESS: It's very vague, but Rubbish King, I would say. COFFEY Q. Accepting the last answer you gave, that's very vague, doing your best, do you recall whether Ravi said something along the lines of, "Give Rubbish King a call." Or did he say, "Give Adam O'Brien a call"? What was the reference to? A. No, it was Adam O'Brien. And that was, I think, the first couple of conversations was with Ravi." (Tcpt, 4 October 2022, pp 48(43)-49(11))

Mr Daley's interactions with Mr O'Brien

1. Following up on his conversation with Mr Daley, Ravi, using his mobile phone, contacted Mr O'Brien in the presence of Mr Daley, to facilitate an introduction. His evidence was: "Q. When you say "the first couple of conversations," do you mean that Adam O'Brien was raised during the course of the first couple of conversations with Ravi, or what is it that you mean? A. No. So, when the subject came up, Ravi was the one that started the conversation with Adam O Brien. Q. And when you say Ravi started the conversation with Adam O'Brien, how did that occur? A. He called him. … Q. And just to be clear, following on from his Honour's questions, the first contact you had with Mr O'Brien, you say, was generated through Ravi's telephone. That's right? A. Yes." (Tcpt, 4 October 2022, p 49(13-21); p 88(16-19))
2. At that time, Mr Daley's understanding that the person on the telephone was Mr O'Brien was predicated upon Ravi introducing him as such. Mr Daley later called Mr O'Brien by himself to further the conversation. Mr Daley accepted at trial that he had given evidence to the EPA (in his interview) that he recalled using two separate mobile phone numbers to reach Mr O'Brien (being a number ending in 301 and a number ending in 435), as well as a landline number. Mr Daley also explained to the EPA that he was given Mr O'Brien's second mobile phone number by Ravi after he unsuccessfully tried to reach him on his first mobile number.
3. At trial, Mr Daley gave evidence that he proceeded to enter into an agreement with Mr O'Brien (before meeting him in person), according to which Mr O'Brien would arrange for the removal of the ACM from 2 Arcadia Road and would supply him with trucking records to substantiate the disposal of the waste, which Mr Daley would in turn supply to Forte NSW in accordance with the Subcontract. His evidence was: "[Coffey] Q. At some point, your evidence is, if I understand it correctly, you've had a phone call or a number of phone calls with Mr O'Brien where, ultimately, you engage with an agreement with Mr O'Brien slash Rubbish King for him to provide services to remove waste from the site in Glebe. That's right, isn't it? A. I believe so, yes. Q. At the time that you came to this agreement, you'd not met Mr O'Brien in person, had you? A. No. Q. So your evidence is that you came to an agreement with this person who told you they were Adam O'Brien in circumstances where you hadn't met them before? A. Correct. Q. You didn't have a pre‑existing personal or business relationship? A. No. Q. The way in which you paid Mr O'Brien - or his company, I should say, Rubbish King - for the provision of trucks to the site to remove the waste, how was that? What was the agreement? A. From memory, it was a tonnage quote, and he was to provide me trucking records to support that tonnage. Q. When you say he was to provide you, you accept that's not-- A. That was the-- Q. Sorry, I didn't mean to cut you off. A. No, sorry. That was the agreement." (Tcpt, 4 October 2022, pp 57(44)-58(22))
4. Mr Daley maintained both during his interview with the EPA, and at trial, that he informed Mr O'Brien at the beginning of the project that he would be required to dispose of the ACM in a "legal fashion" and to provide tip dockets in relation to the waste removed, although he acknowledged that he probably did not use those exact words.
5. The terms of the agreement, which was never formalised in writing, are otherwise unclear, with Mr Daley indicating that he did not recall the frequency at which the provision of trucking records was to occur, or the circumstances of the payments of Mr O'Brien's fees. Mr Daley explained that it was common practice in the industry, or at least in his experience, for such agreements not to be made in writing. He estimated that he conducted business without a written contract around 50% of the time and, relevantly, does not recall reducing to writing his agreement(s) with other contractors engaged in the project at 2 Arcadia Road.
6. At the trial, and during his interview with the EPA, Mr Daley explained that he recalled usually paying Rubbish King (or instructing his brother (Luke Daley) to do so) both in cash or by electronic transfer from JJD's bank account, roughly according to what Mr O'Brien indicated to him was owing either informally, or by way of invoice for the work undertaken. Payments would be made on a weekly basis and were said to follow the receipt of trucking records provided by Mr O'Brien which identified the tonnage and corresponding amount to be paid.
7. Although Mr Daley was unable to recall or speak to any particular invoices or requests for payment by Mr O'Brien, based on a bank statement he was shown by the EPA during his interview he accepted that the document indicated that he had paid Mr O'Brien $80,000.
8. Mr Daley's interactions with Rubbish King appear to have been limited to his dealings with Mr O'Brien, although he indicated that both the names of Taylor Camdan and Raymond Bull "ring[s] a bell" (Tcpt, 4 October 2022, p 39(33-38)). When it was put to him in cross-examination that he had come to an agreement with Mr Camdan or Mr Bull to produce false information in respect to the transport of the ACM, Mr Daley denied knowing either of them. His evidence was: "[Coffey] Q. I want to suggest to you, Mr Dailey, that you arranged with Mr Camdan for the creation of these false documents. A. I still don't know who Mr Camdan is. Q. You gave some evidence earlier that - my words, not your words, but - you had a vague recollection? If someone could help me with-- HIGGINS: It was, "No, but knew him." COFFEY: It rang a bell. WITNESS: Okay. COFFEY: So, there are a few notes in relation to what it was. WITNESS: Okay. COFFEY Q. So, what is your evidence to this Court in relation to Taylor Camdan? Your first evidence being, vague, rang a bell, now you don't know who I'm talking about, and-- A. No, that - vague, rings a bell, but I have no idea who it is." (Tcpt, 4 October 2022, pp 95(41)-96(13))
9. Mr Daley also gave evidence of meeting Mr O'Brien in person at least once in Manly. He vaguely recalled having met with Mr O'Brien on another occasion but was not able, from memory, to provide further information. When taken, in cross-examination, to the answers he gave during his interview with the EPA about having met Mr O'Brien on several occasions in both Manly and Parramatta, Mr Daley indicated that he could not, at this stage, recall. Mr Daley acknowledged the discrepancy between his witness evidence and the answers given in his interview with the EPA and indicated that his previous evidence was likely to be truthful as it was closer in time to the relevant events.
10. Mr Daley gave evidence that, on the occasion he remembers meeting Mr O'Brien, he was able to identify him because the person he met introduced himself as "Mr O'Brien" and had the same voice as the person he had previously spoken with on the phone and that Ravi had introduced as being Mr O'Brien. His evidence was: "[Coffey] Q. The proposition was put to you by my friend, that the person you understood to be Adam O'Brien, on that phone call, you understood, because you said that's what Ravi had told you the person was. A. At the phone call? Yes. Q. Yes. At the phone call. A. Yes. Q. His Honour then asked you a question, "The man you met at Manly, did you understand that you'd spoken to him before?" To which you answered, "Yes." A. Yes. Q. What did you mean by that answer? A. I recognised his voice. He introduced himself. Q. As the same person that Ravi had told you was Adam O'Brien on the phone. A. Vaguely. Yes." (Tcpt, 4 October 2022, pp 99(45)-100(13))
11. However, Mr Daley indicated that he did not recall Mr O'Brien showing him any form of identification. Based on his meeting with the person he understood to be Mr O'Brien, he was able to provide a physical description of Mr O'Brien to the EPA investigators as a "skinny, white, rough-looking guy with stab wounds all over his chest, looks like a bikie or a drug dealer".
12. In relation to the EPA's investigation, Mr Daley confirmed that at no point was he asked to provide a photograph of the person with whom he had met nor was he taken through a process whereby he was shown photographs of multiple people and asked to point out the person with whom he had met.

Removal of the ACM from 2 Arcadia Road

1. When asked during the EPA interview about his understanding of where the ACM was transported to, Mr Daley explained that trucks were being sent to 2 Arcadia Road by Mr O'Brien who was "taking them to his yard and disposing of it" and that he "found out later that it was then sent to Suez …". He was not, however, able to recall the dates at which the trucks connected to Mr O'Brien allegedly began removing the ACM. He gave evidence that as far as he had observed on the site, Mr O'Brien did not personally attend to and participate in the haulage process. He further indicated at trial that he did not recall at what point he became aware that the ACM removed was not being disposed of in the way intended.
2. Mr Daley was shown a copy of the trucking records allegedly issued by Rubbish King in relation to the amount of soil moved from 2 Arcadia Road ('Rubbish King truck logs') and maintained during his interview with the EPA that they would have been emailed to him by Mr O'Brien. He was however unable at the time to locate a copy of any email from either Mr O'Brien or Rubbish King attaching this document. When cross-examined, he confirmed that he obtained the document from Mr O'Brien but could not recall how that occurred.
3. As for the provision of the RK weighbridge dockets by Mr O'Brien and/or Rubbish King, Mr Daley indicated both at the trial and during his interview with the EPA that they had never been physically handed to him by Mr O'Brien, but would usually be sent to him, or sent directly to Forte NSW. At trial, Mr Daley accepted that he sent Mr Henwood emails containing photographs of the RK weighbridge dockets (Tcpt, 4 October 2022, pp 70(3-48); 84(23-25)). However, he was unable to recall whether he ever had possession of the original RK weighbridge dockets at the time the photographs were taken, whether he actually took the photographs or whether he had received the photographs from another source and simply forwarded them to Mr Henwood. When put to him that Mr O'Brien had in fact never emailed him these photographs, Mr Daley was unable to provide an answer. His evidence was: "Q. You accept, Mr O'Brien, that you have not provided to the EPA a copy of an email from Mr O'Brien to you which attaches the photographs or copies of Rubbish King dockets, have you? A. I don't recall. Yes. Q. If you accept from me that the evidence, the material that is shown in this brief-- A. Yes. Q. The prosecution accepts that there isn't a copy of that particular email. A. Okay. Q. What I'm now suggesting to you is the reason that you haven't provided a copy to the EPA is because Mr O'Brien never sent you those Rubbish King dockets by email. A. Okay. Q. Do you agree or disagree with that? A. I don't really know what to think. This is all just confusing. Q. Well, I'm not attempting to confuse you, so-- HIS HONOUR Q. It's being suggested to you that Mr O'Brien never sent you the Rubbish King documents by email. A. Okay. Q. Is that right? A. I have no idea. I literally - like, I can say "yes", but that's not even accurate." (Tcpt, 4 October 2022, p 85(7-36))
4. Mr Daley was similarly unable to recall how he came into possession of the Suez weighbridge dockets contained in a PDF document titled "Josh Daley_scan.pdf" which he provided to Mr Henwood by email on 24 January 2017. When asked whether he had created the document by scanning the dockets, Mr Daley was not able to answer.

Steven James' evidence

1. Steven James, lead investigator on the EPA's waste compliance team enquiring into the offences the subject of these proceedings, gave oral evidence at the trial and by way of an affidavit sworn 10 January 2020.

Scope of the EPA's investigation

1. Mr James gave evidence that the focus of his investigation concerned the creation of the false documents, rather than where (and how) the ACM was disposed of, although that was also a matter that the EPA had hoped to clarify. The only documents investigated by the EPA were those which ultimately formed part of the charges the subject of these proceedings. Mr James explained that he initially suspected nearly "everyone" involved in the project at 2 Arcadia Road, namely Mr O'Brien, Rubbish King, Mr Daley, JJD Construction, Forte NSW, and to that extent, Mr Henwood "was a suspect at the start".
2. As far as Rubbish King was concerned, Mr James confirmed that he became aware during his investigation that other persons worked for or on behalf of Mr O'Brien and/or Rubbish King, whose names Mr James could not recall, and from whom he did not seek to obtain statements. This decision appears to have been predicated on one of those persons having ceased employment with Rubbish King prior to the execution of the search warrant such that Mr James indicated "it's not something we turned our mind to."
3. Mr James further indicated at trial that he did not lead any enquiries into the activities of Raymond Bull, Taylor Camdan or "Paula", who appear to have been connected to Rubbish King, or any of persons by the name of Basha and Ravi, Kevin Lincoln, an associate of Mr O'Brien, or a haulage company known as "Allum Haulage".
4. Mr James deposed to issuing notices to provide information and/or records under s 191 of the POEO Act to Suez, Troppo Architects, CHEC, Forte NSW, JJD, and Mr Steven Vrettos (trading as Steven Vrettos & Co.). While he did not issue a s 191 notice to Rubbish King or Mr O'Brien, Mr James explained that this decision resulted from a concern that, as the primary suspect in relation to fraud offences "… he didn't trust that he would not dispose of evidence or provide false or misleading information."

Execution of a search warrant at 13 Lucca Road

1. Instead, Mr James gave evidence that the EPA executed a search warrant against Mr O'Brien at 13 Lucca Road in order to mitigate the risk of any available evidence being tainted. Mr James explained that he had organised the attendance at the execution of the search warrant of Maggie Ng and Philippa Chung, both computer forensic specialists in the employ of the Australian Taxation Office ('ATO'), to provide assistance in imaging any electronic devices found at the premises.
2. During the search, Mr James deposed to finding what he described as the "weighbridge computer" and contacting Marcus Graham of Newcastle Weighing Services Pty Ltd by telephone who, upon instructions, remotely (but not "forensically") accessed the computer. Mr Graham navigated through the data stored locally on the computer and, in particular, observed a weighbridge docket with data indicating that the issuer was Dial A Dump Industries Pty Ltd, which he proceeded to print using the weighbridge printer. Mr James confirmed that he seized a number of items during the search warrant, including part of the weighbridge computer consisting of a monitor and the hard drive attached to it.
3. Mr James also referred in vague terms to another computer found in the office building of the site which the ATO officers may have examined. In his understanding, this computer had been left there by the former occupier of the site, a company referred to as "Waste Enterprises", and contained documents related to both Waste Enterprises and Rubbish King. Mr James accepted that no forensic examination was undertaken of this computer that may have identified the device from which the False Email or the Real Email was sent.
4. Mr James also seized a few copies of Mr O'Brien's personal banking records however he did not seek to obtain further information from Mr O'Brien's financial institution.

Forensic examination of the computer devices, emails and telephone calls

1. Although not in his affidavit, when asked specifically, Mr James accepted that only limited, if any, subsequent examination of the weighbridge hard drive had been undertaken. His evidence was: "[Coffey] Q. It's the case that there has not been a forensic examination of the CPU hard drive or monitor; isn't it? A. More the - more the hard drive, your Honour. There's nothing to examine in a CPU or a monitor. I'm not aware there's been any forensic examination of the hard drive. Q. What was the purpose of seizing the hard drive, if not forensic examination was undertaken? A. I guess, better to have it and not need it, your Honour, to need it and not have it. So, it was seized in the event that we needed it. Q. But on that same vein, Mr James, better to have it but not have it, wasn't it better to conduct an investigation and have a forensic analysis done and produce that material, on the basis that it might also produce exculpatory information or evidence for Mr O'Brien? A. The hard drive, I believe, was examined by Mr Graham, of Newcastle Weighing Services. But not in a - a manner that would afford evidence. So, we got an indication of what the hard drive contained. More to see if it led to any other avenues of enquiry, your Honour. Not so much to obtain either, evidence that could implicate or exculpate Mr O'Brien." (Tcpt, 5 October 2022, pp 154(34)-155(3))
2. Mr James was however unable to provide more details about the extent or outcome of those further enquiries. His evidence was: "Q. Did at any point after you received this particular hard drive from the site, did the ATO forensic officers that attended, or other ATO forensic officers, conduct a further examination of the hard drive? A. I believe the - the ATO officers attempted to image the hard drive. I'm not sure whether they were successful or not, your Honour. I can't recall. Q. To be clear, was this on the day of the search warrant, or another occasion? A. Sorry, I think I'm confusing myself. There was another computer in an office of the premises, and I believe, if there was any further examination of that computer, that was the ATO officers. I'm - the weigh bridge computer was quite old, and I think it was actually even running Microsoft XP or some system that the ATO struggled to access because of its age. So, I'm sure whether the ATO office were able to further examine that weigh bridge computer or not, your Honour. Q. I just want to be clear, Mr James. In respect of the weigh bridge computer device, once the device was taken away from the Wyong site, did the ATO, at any time, whether it be on the same day of the warrant or at a later time, attempt to access that device as a forensic IT specialist, on behalf of the EPA? A. I believe so, your Honour. Q. When was that? A. I'm not sure which date. After the search warrant. Q. Do you accept, that is not recorded in your affidavit? A. Yes. That's correct. Q. Do you accept you have not disclosed any material in the brief in respect of those enquiries? A. That's correct. Well as far - as far as I'm aware, your Honour." (Tcpt, 5 October 2022, p 156(16-46))
3. Mr James also indicated that he was unable to recall having told the EPA's case lawyer about the conduct of further forensic examinations of the computer that was seized, or the results of such examinations.
4. With respect to access to the computer located in the office building at the site, Mr James accepted that there was insufficient evidence to conclusively determine whether the computer had been used by Rubbish King.
5. Mr James accepted that there was no evidence (being any files, data or an expert report) that the hard drive seized from 13 Lucca Road contained any data related to what was contained in false documents the subject of these proceedings. Mr James however clarified that the purpose of the examinations undertaken were to see whether the devices would lead other avenues of inquiry rather than gather additional evidence that could implicate or exculpate Mr O'Brien.
6. Mr James accepted that although copies of several emails had been sent to him by various witnesses (including Ms Comino, Mr Le Good, and Mr Henwood), there had been no forensic examination of the actual emails (that is, of their native original format) in an attempt to identify backend information such as the internet protocol ('IP') address of the original sender. In particular, Mr James accepted that the EPA was in possession of the original "Outlook" email sent from Mr Daley to Mr Henwood dated 24 November 2016 in its native format. However, there has not been any examination or analysis of the photographs of the Suez weighbridge dockets embedded in the email such as to identify any metadata indicative of where they were taken. This appears to have been explained partly by his uncertainty about what the metadata analysis would show in respect of the various documents.
7. Mr James accepted that he had not been provided by any native email files of emails sent from, or received by, the Rubbish King email addresses and, as such, he was unable to conduct a forensic analysis of the email which was allegedly sent by Mr O'Brien to Mr Daley attaching the Rubbish King trucking records. The Court was not provided with a copy of this email. Mr Daley had been unable to locate this email when asked by the EPA during his interview.
8. At trial, Mr James was questioned as to why a search warrant was not executed at the JJD premises to obtain Mr Daley's electronic devices which could have provided the opportunity to obtain the native file and which could have identified if Mr O'Brien had sent the photographs or documents or emails to Mr Daley, to which Mr James replied that the chief decision not to execute the warrant was "the passage of time" (Tcpt, 5 October 2022, pp 178(78)-179(16)).
9. Mr James accepted he was aware that it was alleged Mr O'Brien was contactable through more than one mobile telephone number. In relation to the two mobile phone numbers through which Mr Daley indicated he contacted Mr O'Brien, Mr James gave evidence that enquiries made with the telecommunications provider established that the mobile number ending in 435 was registered to Mr Bull, and that the mobile number ending in 301 was registered to Mr O'Brien. He accepted that no call charge records were obtained for the mobile number ending in 435, despite Mr Daley having given information that it was a number he allegedly used to contact Mr O'Brien.
10. Mr James agreed that there had been no analysis undertaken comparing the mobile telephone records against Mr O'Brien's personal bank records. He accepted that if such bank records had been obtained, it may have been possible to compare the transactions against the telephone records and that this may have been supportive of the prosecution case, or in the alternative, supportive in favour of Mr O'Brien.
11. Mr James accepted that that there was no direct evidence that Mr O'Brien was in possession or control of, or using the mobile number ending in 301, and that he was not able to exclude the possibility that an employee or contractor working for Rubbish King operated this number on behalf of Mr O'Brien. However, Mr James qualified this statement by indicating that there was no evidence suggesting that another person was using that the mobile number registered under Mr O'Brien's name.
12. Mr James gave further evidence that there were three email accounts hosted under the IP address of "rubbishking.com", namely "king@xxbbishking.xx.au"; "admin@xxbbishking.xx.au"; and "adam@xxbbishking.xx.au" ('Rubbish King email addresses'). He was however not able to confirm whether these email addresses each had a centralised mailbox accessible by multiple persons on a computer within the Rubbish King premises at 13 Lucca Road. Despite this, he did not make any enquiries to exclude the possibility that someone other than the Mr O'Brien was operating the Rubbish King email addresses. He however clarified that this investigative choice was based on the lack of any suggestion, on the available evidence, that another person was using those accounts.
13. When asked whether his basis for suspecting that Mr O'Brien had sent various emails from the Rubbish King email addresses was that the display name was recorded as "Adam O'Brien", Mr James responded "not entirely". In particular, he indicated that his assumption was solidified by the "circumstances of conversations with people and - and then getting sent emails". He later accepted that the mere presence of a signature containing Mr O'Brien's name and contact details in an email does not constitute proof that he was the sender and indicated "[t]here's more to it than that" (Tcpt, 5 October 2022, p 186(33-38)).

Other enquiries

1. Mr James gave evidence that he became aware throughout the course of the investigation that other persons were working for Mr O'Brien or Rubbish King at 13 Lucca Road, stating that he believed "that there may have been someone working in the office … and at least one male worker, working on an excavator or working the yard" (Tcpt, 5 October 2022, p 179(24-40)). He could not precisely recall any names. Whilst he acknowledged not having made further enquiries into their identity and/or roles within Rubbish King, he explained that he did not suspect anyone continued working at the premises at the time of the execution of the search warrant, primarily because the premises were no longer receiving waste.
2. Mr James gave further evidence that he compared the trucking records allegedly provided by Mr O'Brien to Mr Daley with a document provided by Forte NSW which recorded the registration numbers of heavy vehicles at 2 Arcadia Road and that the similarities between the registration numbers appearing on those two documents played a role in his suspicions that Mr O'Brien had been involved in the removal of the ACM. Aside from his consideration of the trucking records, Mr James indicated that he did not thereafter seek to obtain evidence from any of the owners or operators of the vehicles with registrations recorded. When asked at trial, he was unable to identify which registration numbers he had attributed to Rubbish King from those he had attributed to other haulage companies.
3. In relation to other identification measures that could have been available, Mr James confirmed that he did not consider conducting an identification parade in relation to Mr O'Brien. Neither did he seek to have the physical RK weighbridge dockets seized from Troppo Architects fingerprinted.

Mr Henwood's evidence

1. Mr Henwood indicated to the EPA during his interview that he had initially been verbally advised by JJD that the waste would be disposed of at Suez's facility in Kemps Creek and that he only later became aware that the ACM had in fact been removed by Rubbish King.
2. In the context of seeking documentary confirmation of Rubbish King's capacity to legally dispose of the ACM, Mr Henwood stated that he is "quite confident" that he spoke with Mr O'Brien over the phone "early in the [2017] new year" and that he subsequently received a letter in which Mr O'Brien confirmed that despite being under an EPA investigation, he could legally operate.

SUEZ's evidence

1. Suez was issued a notice to provide information and/or records by the EPA under s 191 of the POEO Act, in response to which it confirmed that it had provided Rubbish King with a quote for the disposal of waste by way of email sent on 3 January 2017 by Mr Le Good, but that this quote had not been accepted by Rubbish King.
2. In this regard, Mr Le Good deposed to sending an email to Rubbish King on 3 January 2017 using his (then) email address, being "xxncan.legood@suez.xx", and appending his phone number, being "+61 (0) xx7 xx3 044".
3. Mr Le Good examined the False Email and deposed to the falseness of the two contact details contained in that document, namely "xxan.lago@suez.xx" and the mobile number ending in 435.

Telephone records

1. A schedule of the Telstra Limited mobile number registered to Mr O'Brien (being the mobile number ending in 301), including the incoming and outgoing call charge records for the period between 1 September 2016 and 31 March 2017 was prepared pursuant to s 50 of the Evidence Act and tendered by the prosecutor.
2. The records displayed the telephone contact between Mr Daley and Mr O'Brien, and Mr Henwood and Mr O'Brien. It is sufficient to state that there were numerous calls exchanged between the number ending in 301 and the numbers registered to Mr Daley between 4 November 2016 and 28 March 2017. To a lesser exchange the records showed that a few calls exchanged between the number ending in 301 and the number registered to Mr Henwood between 23 December 2016 and 23 January 2017.

Legislative framework

1. As at the date of each offence, the statutory provision creating the offences relevantly provided: Part 5.6 Land Pollution and Waste … Division 3 Waste offences … 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 - … (b) in the case of an individual - $120,000. … (3) In this section, information is taken to be supplied to a person in the course of dealing with waste if it is supplied: … (b) in the course of an activity relating to the storage, transport, handling, deposit, transfer, processing, recycling, recovery, re-use or use of the waste. (4) In this section, information about waste means information about any of the following: (a) the type, classification, characteristics, composition or quantity of the waste, (b) the actual or proposed storage, transport, handling, deposit, transfer, disposal, processing, recycling, recovery, re-use or use of the waste, (c) the hazards or potential harm to the environment or human health associated with the waste or an activity referred to in paragraph (b). (5) In this section, information includes a record containing information. (5A) In this section, supply information includes cause or permit information to be supplied. (6) Proceedings for an offence against this section may be instituted only by the EPA.
2. The elements of an offence against s 144AA(1) of the POEO Act are therefore that, first, a person supplied information about waste to another person; second, that the information was supplied in the course of dealing with waste; and third, that the information was false or misleading in a material respect. As provided in the SOAF, the parties agree that the information was supplied in the course of dealing with the ACM at 2 Arcadia Road and that it was false and misleading in a material respect. Mr O'Brien however denies that he was the person responsible for the supply of false and misleading information.

Separate consideration of the various charges

1. Although the four charges were heard together, each must be considered separately. It would be impermissible to reason that if the prosecutor proved that Mr O'Brien committed one offence, he must necessarily have committed another, or the others: R v Filipovic; R v Gelevski (2008) 181 A Crim R 83 at [127] (Curtain AJA). However, in circumstances where the prosecutor has relied upon one body of evidence in respect of the charges, I may nevertheless, in reaching my verdict(s), consider the totality of the evidence in the case as relevant to each charge: Sutton v R (1984) 152 CLR 528; [1984] HCA 5.

Burden and standard of proof

1. The prosecutor bears the onus of proof to establish the guilt of Mr O'Brien beyond reasonable doubt. This onus never shifts. Those words have their ordinary meaning and require that the essential ingredients of each element of the offences be so proved. The prosecutor is not, however, required to prove the truth and reliability of every disputed fact, or to answer every question that might be posed concerning the evidence of the case.

Mr O'Brien's silence

1. As a corollary of the allocation of the burden of proof upon the prosecutor, there is no obligation on Mr O'Brien to prove any fact or issue that is in dispute, nor to prove his innocence: Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544 at [99].
2. Mr O'Brien did not give evidence in these proceedings. He had no obligation to do so. He is presumed innocent and his election not to give evidence does not constitute any admission by him. No such inference is drawn in this judgment.
3. Further, Mr O'Brien's silence in Court can neither be used to fill gaps in the evidence, nor to assess whether the prosecutor has proved its case beyond reasonable doubt.

Circumstantial proof

1. The parties accept that the prosecutor's case is a circumstantial one, insofar as no witness has given evidence of seeing Mr O'Brien creating or sending the false documents. Rather, the prosecutor asks this Court to draw inferences from the available evidence. The inference of guilt argued by the prosecutor is drawn from a combination of circumstantial facts sought to be established by the evidence.
2. The prosecutor submits that any directions I give myself in relation to the nature of its circumstantial case should be given on the basis that the various pieces of circumstantial evidence that I rely upon constitute "strands in a cable". Mr O'Brien opposes that course and submits that to the extent that the prosecutor relied upon circumstantial evidence, that circumstantial evidence operated as "links in a chain" or, in other words, that there was one (or more) indispensable intermediate facts, in the absence of proof of which I would be compelled to return verdicts of not guilty. The indispensable intermediate fact identified by Mr O'Brien concerned Mr Daley's evidence in which he identified the voice of the person he spoke to in the initial phone conversation with Ravi as being that of Mr O'Brien.
3. Mr O'Brien's submission attracts consideration of Shepherd v R (1990) 170 CLR 573 at [579]; [1990] HCA 56 ('Shepherd'), where Dawson J clarified the rationale for the direction which Mr O'Brien now seeks: "…it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp. 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence."
4. It is a matter for the Court (acting as a fact finder) to decide whether a circumstance is indispensable.
5. In my view, although it is not easy to identify whether a particular set of circumstances is to be characterised as "links in a chain" case or a "strands in a cable" case, I find that the circumstances do not warrant a direction that any particular aspect of the prosecutor's circumstantial case needs to be proved beyond reasonable doubt. This is because I do not accept that any of the proposed facts are "indispensable" within the reasoning of Shepherd. Certainly, the identification evidence derived from the telephone call and of Mr Daley's meeting with Mr O'Brien is compelling. But that does not make it "indispensable" insofar as even without that evidence, and solely on the basis of the SOAF, there is still a case that incriminates Mr O'Brien: Davidson v R (2009) NSWLR 150; [2009] NSWCCA 150 ('Davidson v R') at [61] (Simpson J).
6. I also note that in Shepherd, Dawson J recognised that even if indispensable facts of the kind articulated by Mr O'Brien were identified, a direction of the kind proposed may in some circumstances not be helpful.
7. I therefore consider that the matters relied upon by the prosecutor form part of an overall circumstantial case which should be viewed as "strands in a cable" and give myself the following directions in relation to each offence, in accordance with established principles: 1. I cannot find Mr O'Brien guilty of any of the offences unless satisfied that all reasonable hypotheses consistent with innocence are excluded: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 ('Baden-Clay') at [46], [50]. 2. In order to prove beyond reasonable doubt Mr O'Brien's guilt, the prosecutor must first persuade me that the inference or conclusion it relies upon is a reasonable one to draw from the facts that I find are established from the evidence. To be reasonable, an inference must rest upon something more than a mere conjecture. 3. In addition, I must be satisfied that the only rational inference that can be drawn from a consideration of the established facts, viewed as a whole, is guilt of the particular offence. In other words, the ultimate inference to be drawn to prove each offence is to be proved beyond reasonable doubt. If a reasonable possibility exists inconsistent with guilt in relation to a matter requiring proof by the prosecutor, then the prosecutor has failed to prove that matter beyond reasonable doubt: Peacock v The King (1911) 13 CLR 619 at 661 (O'Connor J); [1911] HCA 66. 4. A circumstantial case is not to be considered piecemeal, and the prosecutor does not need to prove every fact from which it invites the fact finder to draw inferences beyond reasonable doubt: R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48]. The task of the Court is not to deconstruct each item of evidence and take it in isolation; rather it is to examine the whole of the evidence and to determine whether it proves the guilt of the accused person. Individual items of evidence which are on their own are inadequate to found a conviction may take strength from other items: Davidson v R at [61]. 5. Every fact relied upon by the prosecutor need not be proved beyond reasonable doubt. The probative force of a body of evidence may be cumulative: R v Green (No 10) [2021] NSWSC 1449 at [40].

Directions on identification evidence

1. In order to establish the element concerning the identity of Mr O'Brien, the prosecutor relies upon voice identification evidence derived from alleged telephone calls and subsequent meetings between Mr Daley and a person it claims was Mr O'Brien. I am satisfied that such evidence can be characterised as "identification evidence" within the meaning of the Evidence Act.
2. Insofar as the reliability of the voice identification evidence adduced is disputed by Mr O'Brien, it requires directions in accordance with ss 116 and 165 of the Evidence Act: Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40.
3. Accordingly, I note that there is a special need for caution before accepting the voice identification evidence given by Mr Daley and that I should consider the reasons for that need for caution both generally, and in the circumstances of this case.
4. Identification evidence is evidence which may well be unreliable: R v Clarke (1997) 97 A Crim R 414 at 428. At a general level, this is because mistakes are often and easily made, and because what is at issue is not the honesty of the witness, but the accuracy of the witness' conclusion. I am aware that identifying someone by their voice is also difficult because there are few objective features which can be examined. Even though it may be that Mr Daley expressed his opinion about the identification of Mr O'Brien honestly, that does not mean that it was necessarily accurate. At the risk of repeating myself, I must therefore exercise caution before accepting his evidence in this regard.
5. While I refer to the particular matters that may affect the reliability of Mr Daley's evidence in my consideration of the evidence later in this judgment, for present purposes, I direct myself that: 1. Identification evidence may be unreliable; 2. Even the most confident and honest witness can be mistaken when giving evidence of identification; and 3. In considering the identification evidence adduced, I am to take account of the circumstances in which the observations were made. Features that can affect the reliability of identification evidence include, the length of observation, whether the witness knows the person that they purport to identify and how well they know them, and matters such as lighting conditions.
6. These warnings do not constitute a finding that identification evidence is unreliable, but merely require the evidence to be scrutinised and considered carefully.
7. For completeness, I note that the prosecutor relies, albeit to a more limited extent, upon visual identification evidence related to a meeting that occurred between Mr Daley and a person alleging to be Mr O'Brien. However, and as was conceded by Mr O'Brien, this evidence is circumstantial, in the sense that there is indirect evidence of "presence" and does not therefore require a direction pursuant to s 116 of the Evidence Act.

Witnesses and fact finding

1. I am entitled to accept part of a witness's evidence and reject other parts. I have watched both witnesses who gave oral evidence (namely, Mr Daley and Mr James) and have considered both what they said and their demeanour. As I am conscious of the fact that "scientific research has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances" (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]), I have endeavoured to maintain objectivity and neutrality when reviewing the witnesses' evidence.
2. Mr O'Brien raised concerns about the reliability of Mr Daley's evidence. I accept that Mr Daley was at times an unimpressive witness who displayed difficulties recalling the events in relation to which he was cross-examined. However, I do not accept Mr O'Brien's submission that Mr Daley's numerous indications that he "could not recall" are implausible or intentionally misleading. Taking into account that the events he was questioned about occurred some five years ago, I do not consider it reasonable to expect a precise recollection of the details of his dealings and transactions in relation to the project at 2 Arcadia Road. When unable to respond, Mr Daley referred and accepted his previous evidence to the EPA, which he indicated would be more accurate. Mr Daley also made appropriate concessions in cross-examination about the fact that the false documents supplied by Mr O'Brien were favourable to him as it enabled JJD to get paid by Forte NSW.
3. I deal further with Mr Daley's evidence later in this judgment and raise some concerns about some aspects of it. It is however sufficient to observe at this point that I otherwise accept Mr Daley as a witness of truth as to the circumstances of his involvement with Rubbish King, and to this extent, with Mr O'Brien.

Whether Mr O'Brien is the person responsible for the supply of the false and misleading material the subject of these proceedings beyond reasonable doubt?

1. Given certain agreed facts noted earlier in this judgment, the first two elements of the offence under s 144AA(1) of the POEO Act are uncontestably established in relation to each charge. The outstanding issue for determination in these proceedings is therefore whether Mr O'Brien is the person responsible for the supply of the false and misleading material beyond reasonable doubt.

Prosecutor's position

1. The prosecutor's case, which is circumstantial, is that it is to be inferred that Mr O'Brien did in fact supply each of the False Invoice, the False Remittance Advice, the False Email, and the False Delivery Dockets and is therefore guilty of the offences to which these documents relate.
2. The prosecutor submits that the evidence adduced in the proceedings depicts a real background of dealings between Mr O'Brien and the parties said to be involved in the development at the site at 2 Arcadia Road, namely JJD, Forte NSW, Troppo Architects and Suez.
3. In addition to the facts agreed upon by the parties (noted at [7]-[53] above), the prosecutor submits that inferences of guilt in relation to the first, second and third charges are to be drawn, in particular, from the following facts: 1. Mr O'Brien was suggested to Mr Daley as a potential subcontractor for the removal (and deposition) of the ACM from 2 Arcadia Road by a mutual acquaintance, probably the man known as Ravi; 2. Ravi and Mr Daley contacted Mr O'Brien together by telephone; 3. Mr Daley later spoke to Mr O'Brien by himself, using the mobile number ending in 301 as well as the mobile number ending in 435 and a landline number; 4. Over a small number of conversations, Mr O'Brien and Mr Daley came to an oral agreement that Rubbish King would remove the ACM from 2 Arcadia Road, and Mr Daley was satisfied that Rubbish King had the lawful authority to do this. Further to this agreement, it was understood that Mr O'Brien would provide a tonnage quote to Mr Daley for payment; 5. It was common in the hauling and waste removal industries, or at least in Mr Daley's experience, for subcontracting agreements like this to be made over the phone, or by a handshake; 6. Mr Daley met with Mr O'Brien in person on a few occasions, with one meeting occurring in Manly. Mr Daley recognised Mr O'Brien's voice as that of the person to whom he had spoken on the telephone; 7. On 23 November 2016, Mr Henwood requested Mr Daley provide weighbridge dockets for the ACM transported by Rubbish King from 2 Arcadia Road to 13 Lucca Road; 8. Mr O'Brien posted weighbridge dockets purportedly issued by Rubbish King to Mr Daley, in substantiation of the removal of 1,220 tonnes of ACM from 2 Arcadia Road, and its transportation to 13 Lucca Road (that is, not the Suez Landfill at Raymond Terrace). These were the same weighbridge dockets that later came into the possession of Troppo Architects; 9. On 24 November 2016, JJD emailed Forte NSW digital copies of 37 weighbridge dockets that it had received from Mr O'Brien; 10. On 22 December 2016, Mr Daley emailed Mr O'Brien to ask him to provide a "formal notice from a third party surrounding the legal matter at your Wyong depo"; 11. The following day, Mr O'Brien emailed Mr Daley using the address "king@xxbbishking.xx.au" to advise that he could not provide information about an ongoing investigation, based on legal advice, and that Mr Henwood could contact him directly. This email was forwarded to Mr Henwood by Mr Daley that same day; 12. On 3 January 2017, Mr Le Good of Suez provided Rubbish King with a quote for the disposal of waste. This quote was not accepted, and Suez had no further involvement with Mr O'Brien or Rubbish King; 13. Mr Henwood spoke to Mr O'Brien on the telephone on 6 January 2017, using the mobile number ending in 301 to contact him; and 14. Mr O'Brien used the address "king@xxbbishking.xx.au" to send the False Invoice and the False Remittance Advice on 6 January 2017. 15. On 6 January 2017, after Mr Henwood had requested evidence of the lawful disposal of the ACM, Mr O'Brien used the address "admin@rubbishking.com.au" to send the False Email, which was based on the Real Email sent by Mr Le Good on 3 January 2017. 16. On 20 January 2017, Mr Henwood telephoned Mr Daley to request the weighbridge dockets for the disposal of the ACM at the Suez Landfill. Mr Daley indicated that he would "pursue Adam". The same day, Mr Henwood forwarded to Mr Daley an email from Ms Comino of Troppo Architects requesting the same weighbridge dockets. 17. Sometime between 20 January and 24 January 2017, Mr O'Brien supplied the False Delivery Dockets to Mr Daley. Mr Daley in turn provided the False Delivery Dockets to Mr Henwood, initially in a PDF document attached to an email and later in their original (physical) form.

Mr O'Brien's position

1. Mr O'Brien did not give evidence. His position is that the Court could not be satisfied to the requisite degree that he was the person responsible for the creation and/or transmission of the false and misleading material beyond reasonable doubt.
2. Being a circumstantial case, Mr O'Brien points to a number of matters including the quality of the evidence of identification (both aural and visual) leading to the proposition that the prosecutor has failed to prove that Mr O'Brien was the person spoken to on the telephone by Mr Daley, Mr Henwood or Mr Le Good or that he was the person who allegedly met with Mr Daley in Manly and/or in Parramatta.
3. Mr O'Brien also raises various concerns in relation to the absence of direct evidence implicating him; the quality of the identification evidence relied upon; control over the telephone numbers and email addresses said to be have been used to contact him; the evidence of Mr Daley; and the adequacy of the prosecutor's investigation including the conduct of Mr James of the EPA.
4. Overall, Mr O'Brien submits that the process of identification relied upon by the prosecutor was flawed and bears little weight in establishing that he was the person who transmitted the false material the subject of these proceedings.

Findings

1. I note at the outset that I consider the facts set out in the SOAF to provide adequate grounds for accepting Rubbish King's involvement in the removal of the ACM from 2 Arcadia Road. However, and contrary to the prosecutor's submission, this is not alone sufficient for inferring beyond reasonable doubt that Mr O'Brien was responsible for supplying the false material the subject of these proceedings. I therefore move to consider the strands which are cumulatively stated by the prosecutor to support an inference of guilt in relation to each of the charges.
2. In assessing whether I find the particular facts relied upon by the prosecutor to be established, I am not limited to consideration of the evidence directly relating to that fact in isolation from all of the other evidence. Further, and as noted above, I am not required to satisfy myself beyond reasonable doubt in relation to each individual piece of evidence, provided I reach my conclusion upon the requisite standard of proof.

Circumstances of Mr O'Brien's and Rubbish King's involvement with the project at 2 Arcadia Road

1. I accept Mr Daley's evidence and find that Mr O'Brien was recommended to him as a potential subcontractor for the removal of the ACM from 2 Arcadia Road by a business acquaintance of his (a person he referred to as "Ravi") who operated a trucking company called "SSRA Holdings Pty Ltd" and who had also been retained for the project at 2 Arcadia Road. Ravi appears to have also recommended a number of other subcontractors, which Mr Daley engaged to undertake work at 2 Arcadia Road, including "Allam Hauling Holdings Pty Ltd". Whilst Mr Daley did not provide further information about Ravi, including his full name, Mr Daley's business practices appear to have been tainted with informality and I do not consider the vagueness of parts of his evidence to denote dishonesty.
2. Noting that the parties accepted that the mobile number ending in 301 was registered to Mr O'Brien, I accept that communications with this number can be imputed to Mr O'Brien. Mr Daley gave evidence that Ravi used this telephone number to contact Mr O'Brien. He also stated that the person he called on this telephone number introduced himself as being Mr O'Brien. Consistent with this account, Mr Daley gave evidence that he had saved this number as belonging to "Adam Haulage Contractor Glebe" in his mobile phone. Whilst Mr James acknowledged in cross-examination that there was no evidence to prove that the mobile number ending in 301 was exclusively, if at all, used by Mr O'Brien, he also indicated that nothing suggested otherwise. I accept his evidence. That Mr O'Brien operated and used this mobile number is further corroborated in my view by Mr Henwood's evidence that he contacted and spoke with someone who introduced themselves as being Mr O'Brien through this mobile number. In my view, therefore, it is established on the evidence that the person with whom Mr Daley spoke on the mobile number ending in 301 was Mr O'Brien. Although not determinative, I consider that there is nothing on the evidence available suggesting that Mr O'Brien did not have exclusive possession of his mobile number.
3. The prosecutor tendered Telstra Limited schedules of the mobile number ending in 301 recording the incoming and outgoing call charge records to Mr Daley and Mr Henwood over the period 1 September 2016 to 31 March 2017. Read in the light of my finding above, these records indicate a continuous line of communication between Mr O'Brien and Mr Daley, at least over the period from 4 November 2016 to 31 March 2017, by way of SMS and telephone calls. I consider this level of communication to be indicative of contact and dealings between Mr O'Brien and Mr Daley during the period preceding the alleged supply of the false material the subject of the charges. In addition, I consider it to be supportive of Mr Daley's evidence that he mostly dealt with Mr O'Brien over the telephone, a fact on which I have relied later in this judgment.
4. Although with some caution, I accept that Mr Daley met with Mr O'Brien in person, at least on one occasion, in Manly. I note Mr O'Brien's concerns that Mr Daley's evidence in this regard (at trial) was vague and inconsistent with previous statements given to the EPA at interview, with him not remembering on how many occasions or where such meeting(s) had occurred. Although he initially indicated to the EPA that he met with someone he believed to be Mr O'Brien "a couple of times in Manly and a couple of times in Paramatta", when first prompted in cross-examination, he confirmed that he met Mr O'Brien on a "…couple. two" occasions. When further questioned on these meetings, he could not recall meeting Mr O'Brien in Paramatta, and clarified that he met with him at least once in Manly. Be that as it may, given the long period of time that has elapsed since the occurrence of the meeting(s), I do not consider his limited recollection of the event(s) to be indicative of any dishonesty.
5. I am also satisfied that the person with whom Mr Daley met was Mr O'Brien. Mr Daley indicated that the person with whom he met introduced himself as being Mr O'Brien and that he had the same voice as the person he had spoken with on the telephone. While Mr Daley acknowledged that he did not formally verify Mr O'Brien's identity, including by checking identity documents, I accept and find that this is not a usual practice and that no adverse inference should be drawn from his failure to do so. Noting that they had previously been in contact, I give weight to the evidence that Mr O'Brien introduced himself as such, and I find any suggestion that someone had impersonated him to be implausible. In making such a finding, I am mindful, as I must be, of the unreliability of voice identification and have restrained from giving much, if any, weight to Mr Daley's recognition of Mr O'Brien's voice to substantiate his identification. This is largely because, although I accept that they had communicated over the telephone, it is difficult to assess on the evidence, precisely when the meeting(s) occurred, and therefore the number of calls that they exchanged prior to their first meeting based on which, Mr Daley would have been able to recognise Mr O'Brien's voice.
6. Regrettably, Mr Daley was not prompted either during his interview with the EPA or in cross-examination, to give more details of the purpose or outcome of the meeting(s) which could have further assisted in dealing with his evidence in relation to the in-person meeting(s). As such, while I accept that he had met with Mr O'Brien, I only give it limited weight in my ultimate findings.
7. My above findings suggest a background of dealings between Mr Daley and Mr O'Brien at the time of the removal of the ACM from 2 Arcadia Road, and I find that this is consistent with, and supportive of, Mr Daley's evidence that he entered into an oral agreement with Mr O'Brien for the removal by Rubbish King of the ACM waste.
8. With respect to Mr O'Brien's submissions in relation to the absence of any written evidence of the said agreement, I accept Mr Daley's evidence that, as far as subcontracting agreements were concerned, he commonly proceeded informally by way of oral agreement. In addition, despite the paucity of written communication between Mr Daley and Mr O'Brien (or at least someone alleging to be Mr O'Brien) in evidence, I consider that there is documentary evidence substantiating the existence and, to a lesser extent, the terms of the oral agreement. First, leaving aside concerns related to the use of the Rubbish King email addresses which I consider later in this judgment, I give weight to the emails exchanged on 22 and 23 December 2016 in relation to Rubbish King's legal capacity to receive and dispose of the waste. The content of those emails is extracted as follows: "From: Adam O'Brien .au> Date: 23 December 2016 at 8:21:25 am AEDT To: Joshua Daley Subject: Re: Glebe project. Joshua. I would like to apologise to your client, however we are unable [to] provide information on an ongoing investigation. Due to the delicate nature of the situation our legal team has advised otherwise, however please advise your client we are more then happy for them to contact my self personally and I can answer any of there queries as needed. Thank you for taking the time to read this email Adam O'Brien [xx]15[xx]8301 On 22 Dec. 2016, at 12:20 pm, Joshua Daley wrote: Adam My client has requested formal notice from a third party surrounding the legal matter at your Wyong depo. Anyway you could assist us with this would be appreciated. Regards Joshua Daley …"
9. Noting the subject line "Glebe project", and the content of the emails which display a tacit understanding of who the client is, and why further information is required, I consider this exchange to be indicative of Rubbish King's (and Mr O'Brien's) involvement with the ACM removal from 2 Arcadia Road.
10. Secondly, the prosecutor relied upon a letter alleged to be from Mr O'Brien on Rubbish King letterhead (noted at [19]-[20] above), which had been forwarded by Mr Daley to Mr Henwood on 21 December 2016 and which stated: "Rubbish King Pty Ltd functioning waste transfer station at 13 Lucca Rd Wyong is currently a registered and DA approved site acting under DA/624/1997/A. Between the dates of 21/10/2016 and 02/11/2016 JD Works have been tipping GSW contaminated asbestos waste at this facility. Totaling 1220 tons. Waste material was removed from site address 2 Arcadia Rd Glebe NSW under Geotechnical report GTE965 dated 29 September 2016."
11. The letter provides compelling evidence that the oral agreement concerned the removal of ACM from 2 Arcadia Road. I have some concerns over such evidence insofar as it is unclear how the letter was provided to Mr Daley. While I do not consider the use of a Rubbish King letterhead to be in and of itself sufficient evidence that Mr O'Brien wrote it, I note that the letter also contains his mobile number and email address. Further, attachments were provided along with the letter, including a copy of a development approval with respect to the premises at 13 Lucca Road which I consider Mr O'Brien would have been more readily able to access.
12. Thirdly, I consider that the accuracy of the letter of 21 December 2016 (at [19]-[20] above) is supported by a document (allegedly) provided by Mr O'Brien to Mr Daley which recorded details of the registration numbers of trucks that visited 2 Arcadia Road in October and November 2016 and indicated the amount of waste carried by each one. The information contained in that document corresponds to that contained in the letter of 21 December 2016, with trucks being sent by Rubbish King between 21 October 2016 and 2 November 2016 to remove a total of 1,220 tonnes of ACM. Although concerns may be raised about the source of this document, Forte NSW also provided truck records recording movements on the development site. That list contains similar registration numbers that appear on the Rubbish King truck logs, thereby strongly suggesting that Rubbish King had in fact been subcontracted for the removal of the ACM from 2 Arcadia Road.
13. I consider the above evidence to be consistent with Mr Daley's evidence that he had entered into a contract with Mr O'Brien for Rubbish King to remove the ACM from the site at 2 Arcadia Road. I reiterate however that the removal of the ACM is only incidental to the charges the subject of these proceedings which concern the supply of false material related to such works. However, such findings provide a firm factual basis for consideration of the further inferences sought to be drawn.

Alleged supply of false information by Mr O'Brien

1. As noted above, in circumstances where it is accepted that Mr O'Brien was the sole director of Rubbish King, my finding that Rubbish King was involved in the removal of the ACM from 2 Arcadia Road ties Mr O'Brien to the supply of false information substantiating such works.

Supply of false information the subject of the first, second and third charges

1. The medium through which Mr O'Brien is alleged to have communicated with key persons involved in the project at 2 Arcadia Road, and with which some of the false information the subject of these proceedings was supplied, were email addresses operated by Rubbish King, namely "king@xxbbishking.xx.au", "admin@xxbbishking.xx.au", and "adam@xxbbishking.xx.au". It is accepted that the false information the subject of the first, second and third charges was supplied through the Rubbish King email addresses. Most damning is the evidence that the display name accompanying the emails sent from these addresses accurately reflected Mr O'Brien's name and contact information. However, as was raised by Mr O'Brien, it is necessary to consider the extent of his control over these email addresses to determine whether these communications can be attributed to him.
2. Relying on Filippetti v R (1978) 13 A Crim R 335 ('Filippetti'), Mr O'Brien submitted that physical possession of the email addresses, in the sense of exclusive access or use, could not be established on the evidence. This carries the implication that I could not be satisfied that he was in fact the person who sent these emails. In circumstances where the prosecutor did not address or raise the possibility of joint control of the email address, I accept that it is a matter to which I must turn my mind.
3. Although Filippetti concerned a drug offence of which physical possession constituted an element, I accept as a general proposition that possession involves the notion of exclusivity (apart from joint possession). In this regard, I note that the EPA was unable to ascertain the registered owner of the associated email accounts. In addition, I have considered Mr James' evidence in cross-examination that he could not confirm whether the email accounts associated with the Rubbish King email addresses had a centralised mailbox. In my opinion, this leaves open the possibility that the mailboxes were accessible by persons other than Mr O'Brien. Mr James however clarified that further enquiries in this regard had not been conducted because there was no suggestion that anyone else was using those addresses.
4. Leaving aside Mr O'Brien's criticisms of the investigation which I deal with later in this judgment, I find that although the existence of three email addresses for a business may indicate that multiple persons were either employed or otherwise had access to, and use of, those email addresses, there was no evidence before the Court of any other person having been in the employ of Rubbish King at the time of the offences (or ever). I have taken into account Mr Daley and Mr James' evidence in relation to the possibility of there having been other employees at Rubbish King but found it vague and inconclusive. Mr Daley appeared unable to recall or identify the name of anyone else that could have been working at Rubbish King. Mr James for his part indicated that he had been aware that there were other persons working at the Rubbish King premises, including a "male working on an excavator or working the yard" and potentially "someone working in the office". However, he indicated that no one appeared to be working at Rubbish King when he executed the search warrant and reiterated that the premises had stopped operating as a waste facility at the time. In these circumstances, while I accept that Rubbish King may have engaged staff at some point, I am unable to find on the evidence that anyone else had been employed at the time of the offences and that would have had access to Mr O'Brien's email addresses.
5. I also give weight to the fact that the emails the subject of the first, second and third charges displayed a signature block with Mr O'Brien's name and contact details. Relevantly, the telephone number displayed is the same one through which Mr Daley and Mr O'Brien had been communicating throughout the period of the offending. Furthermore, in my opinion, if someone other than Mr O'Brien had been impersonating him and sending emails in his name, this would have become apparent to either or both Mr O'Brien and Mr Daley from their continuous conversations via the mobile number ending in 301 between November 2016 to February 2017. As such, while the use of a signature block is not in and of itself sufficient to infer that the emails had been sent by Mr O'Brien, I find that the surrounding circumstances strongly support that conclusion.
6. In light of the above findings, and bearing in mind Mr O'Brien's involvement with Mr Daley, I am therefore satisfied that he had exclusive access and use of the email addresses from which correspondence the subject of these proceedings was supplied.
7. Despite my finding above, I have considered Mr O'Brien's submission that the further forensic examinations of the emails the subject of the charges should have been conducted to be able to conclusively infer that he was the person responsible for their creation and supply. Mr James confirmed in cross-examination that the EPA had not conducted forensic examinations of the various emails sent from the Rubbish King email addresses nor of the embedded PDF documents or photographs. Although Mr O'Brien submits (and Mr James accepts) that an analysis of the metadata may have assisted the identification of the email addresses and/or device(s) responsible for the creation and supply of the impugned documents, Mr James doubted the value of such analysis in the present circumstances as it would not have assisted in identifying the user who created and/or supplied the particular document or email.
8. In light of Mr James' evidence that a metadata analysis would not necessarily have provided information about the user who created the documents, I find that the necessity of such investigations in relation to the documents relevant to the first, second and third charges to be limited as it is not disputed that they were supplied by the Rubbish King email addresses.
9. Pieced together, the above findings on the facts proposed by the prosecutor create a mosaic that depicts beyond reasonable doubt Mr O'Brien's responsibility for supplying the false material the subject of the first, second and third charges in these proceedings. That is, with respect to the first and second charge, I am satisfied beyond reasonable doubt that Mr O'Brien was the person responsible for the supply via the email address "king@xxbbishking.xx.au" of the False Invoice and the False Remittance Advice. With respect to the third charge, I find beyond reasonable doubt that Mr O'Brien had contacted Suez to obtain a quote for the disposal of ACM and subsequently falsified and forwarded the response received. For completeness I have considered and addressed later in this judgment the absence of any reasonable alternative hypothesis consistent with Mr O'Brien's guilt. To be clear, I find Mr O'Brien's guilt in relation to these three charges to be the only rational inference from the circumstances and evidence presented to me.

Supply of false information the subject of the fourth charge

1. The fourth charge raises somewhat different considerations as the False Delivery Dockets (being the documents to which the fourth charge relates) were not supplied by way of one of the Rubbish King email addresses but rather by an email from Mr Daley to Mr Henwood. The documents containing the False Delivery Dockets was relevantly titled "Josh Daley_scan.pdf", naturally suggesting that Mr Daley may have had a role in its creation. He was however unable to recall, either during his EPA interview or during the trial, how he had obtained these documents. He left open the possibility that the documents could have been emailed to him, or that they could have been physically handed to him. As to the second alternative, he could not however recall whether he had been the person photographing the dockets. There is no evidence before me of any email that he might have received containing these dockets.
2. Prima facie, evidence that Mr Daley's contractual agreement with Forte NSW required him to provide dockets proving the lawful disposal of waste alongside my findings that Mr Daley then subcontracted that work to Mr O'Brien nevertheless appears to favour the inference that Mr O'Brien is also responsible for the supply of the False Delivery Dockets. In addition, my findings in relation to the third charge, being that Mr O'Brien had sought and subsequently falsified a quote from Suez, indicates that he had intended to create the impression that the ACM removed from 2 Arcadia Road would be disposed of at Suez's Landfill. This strongly supports an inference that Mr O'Brien further consolidated this version of events by creating and supplying the False Delivery Dockets.
3. I have also taken into account the fact that the Suez weighbridge dockets have been said to be similar in format and content to the RK weighbridge dockets found at the Rubbish King premises. I consider this to be indicative of Mr O'Brien's involvement in their creation, although I note that weighbridge dockets are likely not documents that can generally be characterised by much originality.
4. While this background connects Mr O'Brien with the creation and supply of the False Delivery Dockets, I however accept that there is no tangible evidence of him doing so.
5. A weighbridge computer and printer were located at Rubbish King's premises during execution of the EPA's search warrant. However, there was no evidence that the RK weighbridge dockets were created on that computer, and even less so that the False Delivery Dockets were so created (Tcpt, 5 October 2022, p 156(10)-(14)). Instead, the weighbridge computer somewhat inexplicably contained weighbridge dockets purportedly issued by "Dial A Dump Industries Pty Ltd". I am not without concerns that additional false material purportedly in the name of other companies may have been created at the Rubbish King premises. I am however not satisfied that Mr O'Brien had created the False Delivery Dockets.
6. In these circumstances, and by contrast to my findings in relation to the first, second and third charges, back-end analysis of the PDF document the subject of the fourth charge (which contained photographs of the Suez weighbridge dockets) may have provided helpful information about Mr O'Brien's involvement, or lack thereof, in its creation and supply. Mr James indicated in cross-examination that the EPA had been in possession of a copy of the native email sent by Mr Daley to Mr Henwood on 24 January 2017 which embedded the PDF document containing the Suez weighbridge dockets. Despite this, no forensic examination was conducted. I consider that the absence of such information in relation to the fourth charge hinders to an extent the prosecutor's circumstantial case that Mr O'Brien was responsible for the creation and supply of the False Delivery Dockets.
7. While I have previously refrained from drawing adverse inferences in relation to Mr Daley's inability to recall certain details, I have some concerns about the gap in the evidence relating to the initial supply of the False Delivery Dockets. At the risk of stating the obvious, an offence against s 144AA of the POEO Act concerns the supply of false information about waste. Despite the evidence connecting Mr O'Brien to the fourth offence, I am unable to conclusively find that he was the person who initially supplied the Suez weighbridge dockets to Mr Daley, thereby causing him to supply the false information to Mr Henwood.
8. Overall, although I have suspicions that Mr O'Brien was involved in the creation and/or supply of the Suez weighbridge dockets, the available evidence is insufficient to persuade me to the requisite level. With respect to the fourth charge, I therefore find Mr O'Brien not guilty.

Is there a reasonable alternative hypothesis consistent with Mr O'Brien's guilt?

1. As noted earlier, the prosecutor is required in a circumstantial case to negate all reasonable hypotheses consistent with the defendant's innocence. Mr O'Brien did not make any submissions, beyond mere suggestions to be deducted from the line of questioning adopted in cross-examination, in relation to such an alternative scenario.
2. Taking Mr O'Brien's case at its highest, he relies upon the absence of evidence proving that he was the person with whom Mr Daley spoke with over the telephone via the mobile numbers ending in 301 and 435; the person with whom Mr Daley met in Manly; and the person who in fact sent the emails the subject of the charges. In short, Mr O'Brien's alternative scenario relies on someone impersonating him in dealing with Mr Daley and other people involved in the project at 2 Arcadia Road.
3. In assessing the existence of an alternative hypothesis, I am mindful that it must be a reasonable one, in the sense that it rests on something more than a theoretical possibility, and that it must be based on evidence.
4. I do not consider it a reasonable hypothesis that someone other than Mr O'Brien spoke with Mr Daley over the telephone via the mobile numbers ending in 301 and 435. This is because the mobile number ending in 301 was registered to Mr O'Brien, and was stated by various persons, including Mr Daley and Mr Henwood, to have been used to reach Mr O'Brien.
5. As for the mobile number ending in 435, I note that Mr James gave evidence that inquiries with the telecommunications provider for the mobile number established that it was registered to Mr Bull. While there are suggestions that Mr Bull was employed by Rubbish King, no further evidence was provided of any relationship or connections between Mr Bull and Mr O'Brien. In addition, when asked in his interview with the EPA, Mr Daley explained that this number had been provided to him by someone called "Ravi" after he complained that he had been unable to reach Mr O'Brien through his primary contact number. In his own words, he contacted Mr O'Brien on the alternate mobile number ending in 435 "a few times and then obviously he realised I was ringing on that one and he vaguely answered each one". At trial, Mr Daley indicated that he recognised Mr O'Brien's voice, and that he vaguely remembers Mr O'Brien being "very clear about who he was".
6. Bearing in mind the special caution required in relation to voice identification evidence to which I have referred above, I repeat my concern about Mr Daley's familiarity with Mr O'Brien's voice and give weight to Mr O'Brien's submission that it remains unclear how many times they allegedly spoke on the telephone prior to Mr Daley using the mobile number ending in 435. In my opinion, however, if someone had been impersonating Mr O'Brien on another mobile number, this would have become apparent from their continuous conversations via the mobile number ending in 301 between 1 September 2016 and 31 March 2017.
7. Furthermore, as foreshadowed above at [164], I do not consider it reasonable either to find that someone had impersonated Mr O'Brien when meeting with Mr Daley. There is nothing on the evidence suggesting so. In fact, it is established and accepted that Mr Daley and Mr O'Brien had been in continuous communication from at least the period between November 2016 and February 2017.
8. Finally, as far as access to, and use of, the Rubbish King email addresses is concerned, I find again that there is no evidence before me suggesting that anyone else could have been sending emails from that mailbox. While Mr Daley mentioned that he vaguely recalled the names of Taylor Camdan and Raymond Bull, he was not able to say who they were. There is no evidence before the Court of any other employees of Rubbish King. Finally, and running the risk of repeating myself, I consider that if someone had impersonated Mr O'Brien by sending emails in his name and displaying his contact details, that would have become apparent during his conversations with Mr Daley.
9. I therefore do not consider there to be a reasonable hypothesis consistent with Mr O'Brien's innocence in relation to the first, second and third charges. As determined above at [172], I am unable to reach the same conclusion in relation to the fourth charge.

Conclusion

1. I have already expressed my reasons for being satisfied beyond reasonable doubt that Mr O'Brien supplied the false and misleading information the subject of the first, second and third charges, and conversely for finding that he is not guilty of the fourth charge.
2. The matters now need to be fixed for a hearing on the sentence to be imposed for the offences. I list the matter before the List Judge on 24 November 2023, for the purpose of fixing a date for the sentence hearing and making appropriate directions to prepare the matters for the sentence hearing.

In proceedings 2020/00016459: 1. Adam O'Brien is found guilty of the offence as charged. 2. The proceedings are listed on 24 November 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2020/00016460: 1. Adam O'Brien is found guilty of the offence as charged. 2. The proceedings are listed on 24 November 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2020/00016461: 1. Adam O'Brien is found guilty of the offence as charged. 2. The proceedings are listed on 24 November 2023 before the List Judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

In proceedings 2020/00016462: 1. Adam O'Brien is found not guilty of the offence as charged.

Amendments 08 November 2023 - Par [110] - typographical error corrected. 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: 08 November 2023