DELIVERIES OF FILL TO BRINGELLY AND MARSDEN PARK PROPERTIES
80Prior to the hearing at first instance, the Galeas gave notice in the following terms of an intention to adduce "tendency" evidence pursuant to s 97(1)(a) of the Evidence Act 1995:
"1. The plaintiff [the Galeas] intends to adduce evidence to prove that the defendants and each of them, by their character and/or reputation and/or conduct, had a tendency to act in a particular way namely to transport, deposit or cause to be deposited fill contaminated with asbestos to properties in the western areas of Sydney including but not limited to the properties listed below during 2002.
2. Further, or in the alternative, the plaintiff intends to adduce evidence to prove that the defendants and each of them, by their character and/or reputation and/or conduct, had a particular state of mind, namely to transport, deposit or cause to be deposited fill contaminated with asbestos to properties located in the western areas of Sydney in order to and for the purposes of avoiding the cost of depositing the contaminated fill at suitably licensed facilities.
3. The substance of the tendency evidence the plaintiff intends to adduce is contained in the following affidavits and/or statements served previously in these proceedings".
[There then followed references to the contents of affidavits or statements of 13 proposed witnesses].
81The proposed evidence was said to relate to the properties at Bringelly and Marsden Park referred to above, as well as to properties at Londonderry and Cranebrook. The appeal is not pressed in relation to the latter two properties.
82As noted in [33] above, the primary judge treated this evidence as admissible without resort to ss 97 and 98, but did not regard it as persuasive.
83The Galeas submit on appeal:
"57. Once the evidence is admitted the tribunal of fact still has to evaluate that evidence and determine whether or not two or more events are substantially and relevantly similar and whether the circumstances in which they occurred are substantially similar. The Court must then further determine whether the similarities are merely coincidences or whether it is so improbable that they are pure coincidental [sic] that the only conclusion could be that they are not ...
58. In determining whether the evidence has significant probative value a trial judge may take into account the time, context and essential critical content of the evidence: see Twynam Pastoral Co Pty Limited v AWB (Australia) Ltd (BC 2008 11118) [2008] FCA 1922 per Jagot J at [13]; whether the evidence establishes a pattern of behaviour or even a modus operandi per Simpson J in Fletcher at [67]; whether the person was, at or about the time in question, engaged in a special kind of business, line of conduct or manner of living per Evatt in Martin v Osborne (1936) 55 CLR 367 at 402. See also R v Smith [2008] NSWCCA 247 (BC 2008 09609).
59. His Honour did not conduct the evaluative enquiry nor undertake the relevant determinations either at the stage of ruling on admissibility nor in his use of the evidence as a tribunal of fact.
60. The trial judge simply failed to analyse the evidence and make the relevant comparison. Had he done so the appropriate finding or inference to be drawn was that the third and fourth respondents had transported contaminated fill to No. 108 and No. 197" (Amended Orange 78).
84Whether Mr Cauchi delivered contaminated fill to the Bringelly and Marsden Park properties was much in dispute. The primary judge appears to have been of the view that it was not proved that he did, on the basis that the sites were unsecured and the contaminated fill may have been delivered by third parties. The Galeas challenged that view on appeal. It is convenient to consider their contentions under this heading upon the assumption that Mr Cauchi did in fact deliver contaminated fill to those sites.
85Even if that assumption were to be made in favour of the Galeas, in my view their contentions fail because the evidence of Mr Cauchi having done so was not probative in any significant way of the allegation that he delivered contaminated fill to Properties A and B. The manner in which the relevance of the evidence is described in the Galeas' s 97(1)(a) notice (see [80] above) indicates the weakness of their argument. In that Notice they alleged, in effect, that the evidence indicated a tendency of Mr Cauchi to deliver asbestos contaminated fill to properties in western Sydney. However, the fact that Mr Cauchi delivered contaminated fill to two properties cannot in my view rationally provide any significant support to the view that he delivered asbestos contaminated fill to Properties A and B. His assumed conduct in relation to the Bringelly and Marsden Park properties may have indicated that he was the type of person who was prepared to deliver contaminated fill if the occasion arose (assuming, which was not proved, that he knew that the fill was contaminated). However significantly greater similarities would be required to render this evidence of Mr Cauchi's conduct of assistance in proving the present case. The Galeas relied upon the similarity of payment arrangements between the Bringelly and Marsden Park properties on the one hand and Properties A and B on the other. However I cannot see how similarity, or even identity, of those arrangements rendered it more likely that Mr Cauchi delivered contaminated fill to Properties A and B.
86What might have been of real significance would have been evidence of identity of the source of the fill delivered to the four properties. Proof that fill from a particular source delivered to the Bringelly and Marsden Park properties was contaminated and that the fill delivered to Properties A and B was from the same source, would have been of some assistance in reaching a conclusion on the balance of probabilities that the material delivered to Properties A and B was contaminated. However, although the Galeas attempted at first instance to show identity of the sources of the fill, they eschewed any attempt to persuade this Court of that identity; no doubt because the evidentiary foundation for such a submission was not present.
87The evidence showed, for example, that in the period 20 March 2002 to 30 April 2002 Mr Cauchi's company delivered many hundreds of truck loads of fill from a wide variety of sources. The locations to which deliveries were made were not revealed by the company's records, but undoubtedly there were a large number. So far as source sites were concerned, the records indicated, by way of example, that in the relevant period 392 truck loads were obtained from a source described as "Baker's Transport", 373 loads from a site at Jamisontown and 220 loads from a site referred to as RNT Civil.
88Proof of deliveries of contaminated material to two sites without proof of the source of the material in my view says nothing about whether contaminated deliveries were made to two other sites (such as Property A and B). The evidence did not, for example, establish a pattern of behaviour or modus operandi (see R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 at [67]) or any special kind of business, line of conduct or manner of living where the proved acts would ordinarily be accompanied by the further act (Martin v Osborne [1936] HCA 23; 55 CLR 367 at 392).
89The present circumstances are far from satisfying the test postulated by Dixon J in Martin v Osborne at 375:
"[A]ccording to the common course of human affairs, the degree of probability that the occurrence of the facts approved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed".