Environment Protection Authority v Ace Demolition and Excavation Pty Ltd

[2022] NSWLEC 45

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Environment Protection Authority v ACE Demolition & Excavation Pty Ltd; Allam [2022] NSWLEC 45

Hearing dates:

4, 5, 24 and 25 August, 27 and 28 September 2021

Date of orders:

10 May 2022

Decision date:

10 May 2022

Jurisdiction:

Class 5

Before:

Moore J

Decision:

See directions at [142] and [143]

Catchwords:

EVIDENCE - Prosecutor serves Defendants with text or WhatsApp conversations obtained from the mobile phone of Mr Sami Allam - messages grouped in seventeen categories of message conversations - Prosecutor identifies the matter for which each group of message conversations is said to demonstrate - some message conversations proposed to be relied upon in more than one category identified by the Prosecutor - some messages proposed to be relied upon by the Prosecutor for hearsay purposes - advance rulings sought by the Defendants pursuant to s 192A of the Evidence Act 1995 (NSW) concerning admissibility of the text messages and WhatsApp conversations - if admissible, Defendants seek restrictions on the use of the messages - agreement between Prosecutor and Defendants on the terms of Consent Orders concerning the majority of the categories identified by the Prosecutor - Consent Orders made concerning the agreed categories - agreement between the Prosecutor and the Defendants concerning proposed hearsay uses - Consent Orders made concerning proposed hearsay uses - admissibility rulings made concerning text and/or WhatsApp message proposed to be relied upon in disputed categories

Legislation Cited:

Evidence Act 1995, s 192A

Protection of the Environment Operations Act 1997

Cases Cited:

Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57

Environment Protection Authority v Allam [2021] NSWLEC 103

Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7

Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 44

Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500

Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37

R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112

Tesco Supermarkets Ltd v Nattrass [1972] AC 153 Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715

Category:

Procedural rulings

Parties:

Environment Protection Authority (Prosecutor and Respondent on the motion)
ACE Demolition & Excavation Pty Ltd (First Defendant and First Applicant on the motion)
Sami Allam (Second Defendant and Second Applicant on the motion)

Representation:

Counsel:
Mr D Buchanan SC/Ms F Graham, barrister (Prosecutor and Respondent on the motion)
Mr J Potts SC/Ms K Morris, barrister (Defendants and Applicants on the motion)

Solicitors:
Environment Protection Authority (Prosecutor and Respondent on the motion)
Clayton Utz (Defendants and Applicants on the motion)

File Number(s):

357465, 357466, 357467, 357468 and 357475, 357476, 357477 of 2020

Publication restriction:

No

TABLE OF CONTENTS

Introduction

Mr Sami Allam’s role with the Company

The charges against the Company

The charges against Mr Sami Allam

Referring to the Defendants

A summary of the charges

The related interlocutory decisions

The 25 August 2021 directions

The additional messages proposed to be relied upon by the Prosecutor

The Defendants’ Notice of Motion

The written submissions

Introduction

The propositions for the Defendants

The Prosecutor’s response to the proposed orders

Representation

The hearing

The Statement of Agreed Facts

The proposed Further Revised Draft Statement of Facts

The Prosecutor’s document

The Defendants’ response

The scope of this decision

Introduction

The Prosecutor’s categories

The relevant statutory provisions

The evidence

Introduction

Additional evidence for the September 2021 hearings

Exhibit 3

The Prosecutor’s key

Mr Pasas’s second affidavit

The Defendants’ further documentary material

The Prosecutor’s key

Introduction

Substantial agreement is reached

The agreed broad temporal limitation

Two agreements covering the majority of the categories

The messages are not reproduced

Matters of general consideration

Introduction

The Defendants’ general introductory comments

The scope of a broad s 136 limitation order

The Prosecutor’s submissions

Attribution of conduct to the Company

The messages in Categories J and K

The exceptions to the hearsay rule

Consideration of the Categories N, O, P and Q messages

Introduction

The general issue of relevance

The issue of a general limitation

Category N

Introduction

The Defendants’ position

The Prosecutor’s position

Consideration

Category O

Introduction

The agreed temporal limitation

The Defendants’ position

The Prosecutor’s position

Consideration

Category P

Introduction

The Defendants’ position

The Prosecutor’s position

Consideration

Category Q

Introduction

The Defendants’ position

The Prosecutor’s position

Consideration

Should there be a general discretionary exclusion?

Introduction

The submissions for the Defendants

The submissions for the Prosecutor

Probative value versus danger of unfair prejudice

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

The addition of messages to Categories J and K

Future progression of the matters

Directions

Annexure A

Annexure B

Annexure C

Annexure D

Judgment

Introduction

1. ACE Demolition & Excavation Pty Ltd (the Company), as its name implies, provides demolition and excavation services to developers operating in the construction industry in Sydney. As part of the Company's activities, it removes and disposes of waste generated by its activities at various construction sites.

Mr Sami Allam’s role with the Company

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

The charges against the Company

3. The Prosecutor has laid four charges against the Company for alleged breaches of s 144AA of the Protection of the Environment Operations Act 1997 (the POEO Act). The relevant elements of this provision are set out below.

144AA   False or misleading information about waste

(1)   A person who supplies information about waste to another person in the course of dealing with the waste, being information that is false or misleading in a material respect, is guilty of an offence.

It is a defence in any proceedings against a person for an offence under this subsection if the person establishes that the person took all reasonable steps to ensure that the information was not false or misleading in a material respect.

Maximum penalty—

(a)   in the case of a corporation—$250,000, or

(b)   in the case of an individual—$120,000.

(2)   A person who supplies information about waste to another person in the course of dealing with the waste, being information that the person knows is false or misleading in a material respect, is guilty of an offence.

Maximum penalty—

(a)   in the case of a corporation—$500,000, or

(b)   in the case of an individual—$240,000 or imprisonment for 18 months, or both.

(2A)   If the court is satisfied that a person charged with an offence under subsection (2) is not guilty of that offence but is satisfied on the evidence that the person is guilty of an offence under subsection (1), the court may find the person guilty of the offence under subsection (1), and the person is liable to punishment accordingly.

The charges against Mr Sami Allam

4. Mr Sami Allam has been charged with three offences pursuant to s 169A of the POEO Act, these being executive liability offences. Executive liability offences are ones where an individual has the offending conduct of a corporate entity imputed to them by virtue, here, of the person being a director of the corporation (s 169A(2)(b)(i)).

Referring to the Defendants

5. Although it will be convenient to refer to the Company and Mr Sami Allam collectively as the Defendants, it will also be necessary, where appropriate, to refer to them individually.

A summary of the charges

6. The Summonses set out the terms of all of these charges. A summary of all the charges against the Defendants is set out in Annexure A to this judgment.

The related interlocutory decisions

7. As part of the suite of evidentiary procedural issues arising with respect to the prosecutions for the charges set out in Annexure A, one related decision has already been given by me. This decision addressed a challenge to the validity of the obtaining by the Prosecutor of a large number of text messages and WhatsApp conversations retrieved from Mr Sami Allam's mobile phone, a phone which had been seized from him by the Prosecutor (there being no challenge to the seizure, merely to the validity of the obtaining of the messages retrieved from it. On 24 September 2021, I rejected the challenge to the obtaining of the messages by the Prosecutor (Environment Protection Authority v Allam [2021] NSWLEC 103 (Allam No 1)).

8. Two further interlocutory decisions have been given simultaneously with this decision. These decisions are Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7 (Allam No 2) and Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 44 (the Company decision).

9. A reading of all four of these decisions will assist in understanding the nature of the present status of the proceedings (proceedings which are scheduled to proceed to trial in late July 2022).

The 25 August 2021 directions

10. On 25 August 2021, at the conclusion of the second phase of these interlocutory proceedings, I made the following directions to permit the third phase (being dealt with in this decision) to be prepared for the hearing scheduled for 27 and 28 September 2021. These directions were in the following terms:

1.   By 5 PM on 6 September 2021, the prosecutor is to provide the defendants with:

a.   a spreadsheet identifying all of the text messages, contained in Tab 2 of Exhibit KB-1 to the affidavit of Kate Bleakman affirmed 12 June 2020, that it intends to rely on in the proceedings; and

b.   a spreadsheet identifying all of the WhatsApp chats, contained in Tab 34 of Exhibit BJD-1 the affidavit of Benjamin James Dales affirmed 29 March 2021, that it intends to rely on in the proceedings.

2.   By 5 PM on 6 September 2021, the prosecutor is to provide the defendants with a document identifying the relevance to a fact or facts in issue in the proceedings of each of the text messages and each of the WhatsApp chats identified in the spreadsheets in Order 1. The prosecutor may do this by way of categories of relevance.

3. Subject to the Court's determination of any advance evidentiary rulings pursuant to s 192A of the Evidence Act 1995 (NSW), the prosecutor shall not be entitled to rely on any text messages or WhatsApp chats other than those that have been identified in the spreadsheets in Order 1.

4. By 20 September 2021, the defendants are to file and serve any Notice of Motion and supporting evidence and submissions in relation to the defendants’ foreshadowed application for an advance evidentiary ruling pursuant to s 192A of the Evidence Act 1995 (NSW) in respect of the material identified in the spreadsheets in Orders 1 and 2.

5.   By 24 September 2021, the prosecutor is to file and serve any evidence and submissions in response to any application by the defendants for an advance evidentiary ruling in accordance with Order 4.

6.   Any application by the defendants for an advance evidentiary ruling filed in accordance with Order 4 is listed for hearing on 28 and 29 September 2021.

7.   Liberty to apply on three days’ notice.

The additional messages proposed to be relied upon by the Prosecutor

11. On 6 September 2021, the Prosecutor served two further spreadsheets on the legal representatives of the Defendants. These two spreadsheets, containing a total of 1,692 messages, were proposed to be relied upon by the Prosecutor for non‑tendency evidentiary purposes. The first of the spreadsheets contained the text messages which had been retrieved from Mr Sami Allam's mobile phone. The second contained the WhatsApp conversations which had been retrieved from that phone. The process by which the Prosecutor was able to access and retrieve these messages is set out at [6] in Allam No 1.

The Defendants’ Notice of Motion

12. As a consequence, a Notice of Motion was filed on 20 September 2021 on behalf of the Defendants seeking advance evidentiary rulings pursuant to s 192A of the Evidence Act 1995 (NSW) (the Evidence Act) concerning the additional text or WhatsApp conversations, which had been retrieved from Mr Sami Allam's mobile phone, now sought to be relied on.

13. The advance rulings sought in the Defendants’ Notice of Motion were in the following terms:

ORDERS SOUGHT

1 Pursuant to s 192A of the Evidence Act 1995 (NSW) (Evidence Act), a ruling or finding that the evidence referred to in Schedule C is inadmissible, or liable to exclusion on discretionary grounds, and will be rejected if tendered.

2 Further, or in the alternative, pursuant to s 192A of the Evidence Act and s 212(3) of the Protection of the Environment Operations Act 1997 (NSW), a ruling or finding that the evidence referred to in Schedule C is not admissible against Mr Sami Allam, the defendant in Proceedings No. 2020/357475-7.

3 Further, or in the alternative, pursuant to s 192A of the Evidence Act, a ruling that the material referred to in Schedule C cannot be used for the purpose of suggesting any form of dishonest or misleading conduct except for those line entries which are specifically identified as falling within Categories K, J and/or Q.

Schedule "C"

Part 1 - Evidence comprising the Messages relied upon by the EPA

Reference	Scope of Objection
Two Excel spreadsheets served by the Prosecutor on 6 September 2021	Entirety of both spreadsheets

Part 2 - Consequential Evidence not otherwise relevant if the Messages are ruled inadmissible or liable to exclusion

Reference	Scope of Objection
Affidavit of Benjamin James Dales dated 29 March 2021	Entire affidavit
Affidavit of Carney Gar Leung Yu dated 22 May 2020	Entire affidavit
Affidavit of Kate Bleakman dated 12 June 2022	Paragraphs [31]-[41] (including Tabs 1 and 2 of Exhibit KB-1)
Affidavit of Roberto Antonio Pupo dated 23 June 2020	Paragraphs [125]-[126] (including the entire document found at Exhibit RAP-09 -> Tab 28 -> Sami Allam’s Phone Extracts)

The written submissions

Introduction

14. Written submissions in support of the Defendants’ motion were filed on 20 September 2021, whilst written submissions in reply for the Prosecutor on this motion were filed on 24 September 2021.

The propositions for the Defendants

15. The written submissions on behalf of the Defendants in support of the Notice of Motion summarised the five bases upon which it was submitted that the text messages and WhatsApp conversations should be ruled to be inadmissible or should otherwise be excluded. The five bases were because:

a)   they are irrelevant, and are incapable of rationally affecting (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings;

b)   they are inadmissible hearsay evidence and no exception within Part 3.2 of the Act has been established by the EPA;

c)   in instances, they are sought to be adduced for a tendency purpose, and no tendency notice has been issued by the EPA (and they would not otherwise be admissible for a tendency purpose);

d) the Court should refuse to admit them under ss 135 or 137 of the Act, as any possible probative value is substantially outweighed by the danger that the evidence might be misleading or confusing, cause or result in an undue waste of time, or be unfairly prejudicial to the defendants; and

e) they are inadmissible against Mr Allam by virtue of s 212(3) of the POEO Act.

16. It is to be noted that, with respect to (e) of the above bases, the broad proposition of inadmissibility against Mr Sami Allam of all text and WhatsApp conversations was rejected by me in Allam No 1.

The Prosecutor’s response to the proposed orders

17. The Prosecutor’s written submissions noted that the making of order 3 sought in the Defendants’ motion was consented to but that orders 1 and 2 were opposed.

Representation

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

The hearing

19. The hearings addressing the various preliminary matters (of which this judgment deals with but one) were held over six days, with an approximately two-week break between the second and third/fourth days, and a further break of a month until the final two days (as a result of additional time being required). This additional time was necessary because the underestimation by the parties when these preliminary determinations were set down for hearing.

20. The hearings were held, as a consequence of the COVID‑19 pandemic, partially using audio-visual software and, when technical problems arose, using telephone conference call technology - without the necessity for any physical attendance in the courtroom.

The Statement of Agreed Facts

21. The parties have settled a Statement of Agreed facts relevant to the series of interlocutory proceedings within which this decision fits. It is in the following terms:

Background

The legislative framework for disposal of excavation waste

1.   At the times of the alleged offences, the disposal of waste, including excavation waste, from construction sites was governed by the Protection of the Environment Operations Act 1997 (POEO Act) and the Protection of the Environment Operations (Waste) Regulation 2014 (Waste Regulation).

2.   There were different types or categories of waste including:

•   aggregate;

•   asbestos;

•   bricks or concrete;

•   contaminated soil;

•   mixed waste;

•   soil (not contaminated or Virgin Excavated Natural Material (VENM));

•   VENM

•   asbestos containing/contaminated material (ACM);

•   potential acid sulphate soils (PASS);

•   general solid waste (GSW); and

•   excavated natural material (ENM).

3.   Under Part 3 of the Waste Regulation, the occupiers of waste facilities were required to record certain information in relation to each delivery of waste or other material received at the facility, including the amount of any waste delivered, its waste type, its waste stream (such as construction and demolition waste), the date and time the delivery is made and the registration number of the vehicle used to make the delivery. This was an obligation that attached only to the occupiers of waste facilities.

Accounting required for disposal of excavation waste, generally

4.   In summary, the waste facilities had weighbridges over which the trucks carrying waste into the facility were required to pass. The weighbridges generated weighbridge disposal dockets (dockets) which were usually given to the drivers of the trucks concerned. A function of the dockets was to provide a record of the disposal of the quantity of waste concerned. The dockets sometimes specified the source development site which had been supplied to the waste facility operator when the Company disposing of the waste agreed with the operator for the waste to be disposed of at the facility, and/or given to the weighbridge operator by the truck driver when going over the weighbridge. Where an order number (job number) had been created by the waste facility for that source site, the docket sometimes specified that data. (The process by which the dockets were generated is detailed under the heading “ACE’s transactions with waste facilities” below.) The dockets were ultimately provided to the Company disposing of the waste, in this case ACE Demolition & Excavation Pty Ltd (ACE). A record of the dockets was also kept by the waste facilities. ACE received dockets in one or other or both of two ways:

•   from the driver of the truck; and/or

•   from the facility, sometimes as copies, when it invoiced ACE for the cost of ACE disposing of the waste concerned; or when ACE requested them from the facility.

5.   The dockets usually recorded in print form:

(a)   the name of the facility;

(b)   a unique docket number;

(c)   the date and time;

(d)   the vehicle registration number of the truck;

(e)   the identity of the Company disposing of the waste (e.g. ACE);

(f)   a job number or source location for the waste;

(g)   the waste type;

(h)   the tare weight of the truck; and

(i)   the net weight of the waste.

ACE Demolition & Excavation Pty Ltd

The Company and relevant senior staff

6.   At the times of the alleged offences, ACE conducted civil works, such as demolition and excavation of development sites, and the transportation and disposal of waste.

7.   At the times of the alleged offences, Mr Allam was the sole director of ACE and had been a director since 22 January 2004.  Mr Allam was the sole shareholder of ACE.

8.   At the times of the alleged offences, ACE simultaneously conducted excavation activities on an average of 25 development sites in NSW - most of them in the Sydney area. ACE had an office at Regents Park. Based at the office were

•   Mr Allam - director;

•   Munaf Al Sarray;

•   Bachar Allam - truck & people allocator;

•   Kassan (also “Kassem”) Allam - machinery allocator; and

•   Ameer Sidawi - accounts payable clerk & contracts administrator.

9.   Mr Allam acted as the Company’s chief executive officer.

10.   As part of his role, Mr Al Sarray:

(a)   had oversight of the movement of waste from construction sites to waste facilities, including coordinating where waste was sent;

(b)   was responsible for collecting dockets from waste facilities and for providing copies of dockets to clients and environmental consultants;

(c)   was responsible for finishing the jobs which ACE undertook by, amongst other things, providing evidence to clients that waste anticipated to have been present on the site was lawfully disposed of.

The Company’s operations

11.   ACE typically quoted to development companies (including construction companies) to conduct the demolition and excavation phases of planned development works. Those phases often included the removal from the development site of the demolition and excavation waste generated by ACE.

12.   ACE entered into agreements with various waste facilities for the disposal at those facilities of waste taken from particular development sites at which ACE was generating waste.

13.   The system which ACE operated for the transport of waste to waste facilities was generally as follows:

(a)   excavator operators hired or employed by ACE excavated material from the development site concerned;

(b)   the excavated material was placed by the operator of an excavator either directly from the excavation or from a stockpile into a truck hired by ACE;

(c)   the truck drove to the exit gate of the site;

(d)   the gate was controlled by a traffic controller;

(e)   the traffic controller was told the type of the waste and the waste facility to which the truck should take the waste;

(f)   if he had not already been told by the allocator, the truck driver was told the destination waste facility to which the load should be taken by the traffic controller.

ACE’s transactions with waste facilities

14.   In the period 2016-2017, ACE disposed of excavation waste to waste facilities, including facilities operated by:

(a)   SUEZ Recycling & Recovery Pty Ltd (SUEZ) - including its Elizabeth Drive Landfill Facility at 1725 Elizabeth Drive, Kemps Creek, NSW (SUEZ Facility);

(b)   Dial A Dump Industries Pty Ltd and Dial A Dump (EC) Pty Ltd (DADI) - including its Genesis Eastern Creek landfill and recycling facility at Kangaroo Avneue, Eastern Creek, NSW (DADI Facility); and

(c)   The Holt Estate 1861 trading as Besmaw Pty Ltd (Besmaw) - namely its Holt Land Rehabilitation Centre, corner Lindum Road and Captain Cook Drive, Kurnell, NSW (Holt Landfill).

15.   The procedure to enable ACE to dispose of waste to the SUEZ Facility and the DADI Facility was that ACE already had or opened an account with the operator of the facility. The procedure included:

(a)   ACE provided the operator with information as to the types of waste to be disposed of for a particular job or for various types of waste it may dispose of;

(b)   in the case of DADI, the operator allocated an order number to the customer which was then printed on its dockets as the “Order No.”;

(c)   in the case of SUEZ, the operator allocated a “Customer ref.” which was a unqiue code.

16.   Generally, when a truck carrying waste being disposed of by ACE came to a waste facility it was required to go over a weighbridge. The truck driver told the weighbridge operator that it was carrying waste for ACE. The weighbridge weighed the gross load. The truck travelled into the facility and tipped off its load (if one bin on a bogie truck) or loads (if two bins comprising a truck and dog) and returned to the weighbridge. There the weighbridge calculated the tare weight of the vehicle and recorded the net weight of the load/s. The weighbridge generated a docket (for details, see pars 4 and 5 above).

17.   ACE disposed of waste to the Holt Landfill from at least 12 source development sites. Trucks carrying waste to the Holt Landfill for ACE from any source site went over a weighbridge which calculated the weight of the loads tipped and generated a docket (entitled “Tax invoice duplicate”) which contained the same data as referred to in paragraph 5 above.

Wolli Creek Premises

Development consent, excavation contract and site investigations

18.   On 13 November 2014, development approval was granted for the demolition of existing structures and construction of two 8‑storey residential flat buildings with rooftop terrace areas and basement parking, at 40-50 Arncliffe Street, Wolli Creek, NSW (the Wolli Creek Premises). Top Pacific Construction Pty Ltd (TPC), subsequently known as Top Pacific Constructions Aust. Pty Ltd (TPCA), was a construction Company owned by Top Pacific Group Pty Ltd. The latter Company was responsible for developing the Wolli Creek Premises.

19.   Environmental Investigations Australia Pty Ltd (EI Australia) provided, amongst other things, environmental engineering services for the construction and excavation waste disposal industries. A director at EI Australia was Eric Gerges.

20.   On 9 January 2017, ACE entered into a contract with TPC to carry out excavation and remediation works at the Wolli Creek Premises. ACE was engaged to, amongst other things, excavate and dispose of material from the Wolli Creek Premises. The value of the contract was $3,600,000. The contract was signed for ACE by Mr Allam.

Works at the Wolli Creek Premises

21.   The contract with TPC specified that, amongst other things, ACE was required to remove all VENM, PASS, ACM and GSW from the Wolli Creek Premises.

Information provided by ACE to TPC and EI Australia in respect of waste at the Wolli Creek Premises

22.   On 25 January 2017, ACE submitted an invoice to TPC.

23.   On 23 February 2017, ACE submitted another invoice to TPC.

24.   On 29 March 2017, Dean Huang, a contract administrator employed by TPC, sent an email to Mr Al Sarray and Mr Allam advising that further payments would only be released once further information was received from ACE, including “all dockets” for the “100% of bulk excavation” work for which ACE had claimed payment.

25.   On 7 April 2017, Mr Maroun sent an email to Mr Allam reiterating that TPC would release payment to ACE once dockets were provided.

26.   On 10 April 2017, an email was sent from Mr Allam's ACE email account to Mr Maroun stating that ACE would send through the dockets on that day or the next day.

27.   On 18 April 2017, Mr Al Sarray sent an email to Mr Maroun attaching, amongst other things:

(a)   70 dockets for the disposal of waste material at the SUEZ Facility (18 April SUEZ Dockets). The 18 April SUEZ Dockets did not refer to "Wolli Creek". Instead, the customer reference was recorded as "H57" and, in one instance, “H57 TERRY HILLS”; and

(b)   148 dockets for the purported disposal of waste material from the Wolli Creek Premises at the DADI Facility (18 April DADI Dockets).

28.   Mr Allam was listed in the "CC" field of the email, together with Mr Park Wei, Mr Wesley Wei and Mr Dean Huang.

29.   On 12 June 2017, an email was sent from Mr Allam's ACE email account to Eric Gerges at EI Australia, attaching, amongst other things:

(a)   a document listing details regarding 80 loads, or 2,415.97 tonnes, of waste material (the First Holt Run Sheet);

(b)   a letter from Besmaw stating that 2,415.97 tonnes of VENM was received by Besmaw;

(c)   153 dockets for the purported disposal of waste material at the DADI Facility (12 June DADI Dockets). The 12 June DADI Dockets made reference to a range of source locations, including "wolli creek", "REGENTS PARK", "LIDCOMBE", and "westmead";

(d)   48 dockets for the disposal of waste at the SUEZ Facility (12 June SUEZ Dockets). The 12 June Suez Dockets did not refer to the words "Wolli Creek" but instead referred to "H57" and, in one instance, “H57 TERRY HILLS”;

(e)   an excel spreadsheet titled ‘Wolli Creek Summary’, which included 95 docket reference numbers and associated information for the purported disposal of waste from the Wolli Creek Premises (DADI Spreadsheet); and

(f)   an excel spreadsheet named ‘ACE 130217 300317’, which included 70 docket reference numbers and associated information for the disposal of waste at the SUEZ Facility (SUEZ Spreadsheet). The SUEZ Spreadsheet did not refer to the words "Wolli Creek", but instead referred to "H57" and, in one instance, “H57 TERRY HILLS”.

30.   On 2 December 2017, Mr Sidawi emailed Mr Gerges attaching a purported summary sheet (or run sheet) from the Holt Group. The run sheet indicated that 622 loads, or 18,186.91 tonnes, of waste material had been disposed of by ACE at the Holt Landfill (the Second Holt Run Sheet).  Mr Allam was listed in the CC field of this email.

Zetland Premises

31.   On 20 January 2016, development approval was granted for the demolition of existing structures and construction of a mixed use development comprising three buildings of a scale of 9 storeys, 11 storeys and 15 storeys, each above two levels of basement car parking at 105-115 Portman Street, Zetland, NSW (the Zetland Premises). The construction Company that was responsible for developing the Zetland Premises was Westbourne Constructions Pty Ltd (Westbourne).

32.   On 15 February 2017, ACE entered into a contract with Westbourne to carry out works at the Zetland Premises. ACE was engaged to, amongst other things, excavate and dispose of material from the Zetland Premises, design and install shoring walls and ground anchors, and perform earthworks and piling. The value of the contract was $19,000,000. The contract was signed by Mr Allam for ACE.

Works at the Zetland Premises

33.   Between February and August 2017, ACE carried out and completed the works at the Zetland Premises.

34.   As part of the development consent, Westbourne was required to prepare a Waste Management Plan. Westbourne prepared such a Waste Management Plan on 18 July 2016. That Waste Management Plan stated, in relation to “[e]xcess or contaminated excavation fill... to be removed off site and classified in accordance with relevant authorities”, that “[t]rucking docket records are to be kept on site to check that fill is going to the nominated landfills”. The Waste Management Plan was not included in Westbourne's contract with ACE.

Dockets provided by ACE to Westbourne in respect of waste at the Zetland Premises

35.   On 2 June 2017, Mr Al Sarray sent an email to Glen Allam, a construction manager employed by Westbourne, attaching, amongst other things:

(a)   70 weighbridge dockets for the disposal of waste at the SUEZ Facility (2 June SUEZ Dockets). The 2 June SUEZ Dockets did not refer to "Zetland", but rather to "H57" and, in one instance, “H57 TERRY HILLS”; and

(b)   147 weighbridge dockets for the purported disposal of waste from the Zetland Premises at the DADI Facility (2 June DADI Dockets).

36.   Mr Allam was listed in the CC field of this email.

The proposed Further Revised Draft Statement of Facts

The Prosecutor’s document

22. The Prosecutor has proposed a Further Revised Draft Statement of Facts. It is in evidence (Exhibit EES-1 to the affidavit of Elizabeth Ellen Spain at Tab 5). To the extent that this document includes extensive material that does not form part of the Statement of Agreed Facts reproduced above, that additional material is to be taken to constitute submissions on behalf of the Prosecutor.

The Defendants’ response

23. The Defendants’ response to an earlier revision proposed by the Prosecutor (one also going beyond the above set out Statement of Agreed Facts) is in evidence (Exhibit EES-1 to the affidavit of Elizabeth Ellen Spain at Tab 4). The response document makes it clear that much of the additional material going beyond the Statement of Agreed Facts is disputed on behalf of the Defendants.

The scope of this decision

Introduction

24. This phase of the interlocutory hearings concerned the proposed use by the Prosecutor of various further identified subsets of the text messages and WhatsApp conversations that had been retrieved from Mr Sami Allam's mobile phone. These messages had been extracted by the Prosecutor from some 15,000‑plus text messages and 1,200‑plus WhatsApp conversations that had been retrieved from Mr Sami Allam's mobile phone. I had determined in Allam No 1 that there was no legal barrier which prohibited the potential use of the text messages and WhatsApp conversations retrieved from Mr Sami Allam's mobile phone.

25. The messages that are the subject of this Notice of Motion on behalf of the Defendants have been grouped by the Prosecutor into 17 different categories. The number of messages or conversations in each category varies. Many of the text and WhatsApp message conversations proposed to be relied upon by the Prosecutor appear in more than one category.

The Prosecutor’s categories

26. The categories into which the Prosecutor has allocated the various text messages and WhatsApp conversations have been given the designations set out below. In paragraph 75 of the Prosecutor’s written submissions, it was noted that, on 22 September 2021, a revised version of the below list had been served on the Defendants. The amendments were to Categories H and M. The amendments to these two categories are added in italics in the relevant category below:

A.   Sami Allam’s role in managing the disposal of material from development sites.

B.   Sami Allam’s relationship with developer clients, generally, and/or specifically Top Pacific and Westbourne.

C.   Sami Allam’s relationship with environmental consultant - EI Australia.

D.   Sami Allam’s knowledge of sampling of waste on site, waste classification and reporting, and/or variation records.

E.   Sami Allam’s relationship with waste facilities.

F.   Sami Allam’s knowledge of ACE dealings with waste facilities and knowledge as to the system which ACE operated for the transport of waste to waste facilities.

G.   Sami Allam’s knowledge as to requirement to obtain, keep and supply weighbridge disposal dockets in relation to waste disposal and knowledge as to ACE practices in relation to weighbridge disposal dockets.

H.   ACE's use of picking, screening and backfilling practices at the Wolli Creek and Zetland premises, and Sami Allam’s knowledge of ACE practices on site, including generally, and specifically picking and screening and backfilling.

I.   Sami Allam’s role in providing instructions to employees of ACE.

J.   Sami Allam’s knowledge of or involvement in [a] culture of dishonesty for a non-tendency purpose.

K.   Sami Allam’s tendency to promote a culture, and/or a practice and/or a system of work in the company which involved dishonesty and deception when supplying information to other people in the course of dealing with waste.

L.   Sami Allam’s decision-making role within ACE as to the waste facility or location to which material from development sites was to be taken.

M.   ACE's use of the Arcadia landfill is a waste disposal site and Sami Allam’s knowledge of the use of the Arcadia landfill as a waste disposal site.

N.   Sami Allam’s interest in reducing costs.

O.   Munaf Al Sarray’s role and responsibilities in the company ACE and Sami Allam’s knowledge of Al Sarray’s role and responsibilities.

P.   Sidawi’s role and responsibilities in the company ACE and Sami Allam’s knowledge of Sidawi’s role and responsibilities.

Q.   Sidawi’s role in altering weighbridge disposal dockets and Sami Allam’s constructive knowledge in relation to the supply of false or misleading information about waste.

27. As can be seen from matters later set out, the amendments to the Prosecutor’s categories do not require consideration by me in these interlocutory proceedings in light of the two sets of Consent Orders which resolved, inter alia, matters concerning Categories H and M.

The relevant statutory provisions

28. As earlier noted, the interlocutory orders in the Defendants’ Notice of Motion are sought pursuant to s 192A of the Evidence Act. It is not necessary to reproduce the terms of s 192A. It is sufficient to note that it provides me with the power to give a ruling or make a finding in relation to evidence that is proposed to be adduced in the proceedings against the Company and/or Mr Sami Allam in advance of the substantive hearing.

29. However, it was also pressed on behalf of the Defendants that these additional text messages and WhatsApp conversations should be excluded on the basis that permitting the Prosecutor to rely on them would be unfairly prejudicial to the Defendants, a matter requiring consideration as a consequence of ss 135 and 137 of the Evidence Act. These provisions are in the following terms:

135   General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—

(a)   be unfairly prejudicial to a party, or

(b)   be misleading or confusing, or

(c)   cause or result in undue waste of time.

137   Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

30. It is also, therefore, appropriate to set out the definition of probative value contained in the dictionary to the evidence act. It is in the following terms:

probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

31. It was also submitted that, as a further discretionary point, the time burden which would be placed on the Defendants to respond to all these additional text messages and WhatsApp conversations and matters said to arise from them substantially outweighed the probative value of the text messages and WhatsApp conversations.

The evidence

Introduction

32. The evidence tendered for the purposes of the motions dealt with at the August 2021 hearings concerning these proceedings (the first and second phases of these interlocutory proceedings) was also adopted, as relevant, for the purpose of the Defendants’ Notice of Motion that is the subject of this judgment. That evidence is listed in Annexure B.

Additional evidence for the September 2021 hearings

Exhibit 3

33. In addition to the evidence which had been tendered during the August 2021 hearings, the primary additional evidence was an A3 folder of text messages and WhatsApp conversations reproduced in the 17 groups to which they had been attributed by the Prosecutor. This folder had been prepared by the legal representatives of the Defendants. The folder became Exhibit 3. The groupings of these messages (arranged in conversations from only one or two messages through to lengthier clusters of 10 or more messages) were identified by what each group of conversations was said by the Prosecutor to demonstrate.

34. It is to be observed that Exhibit 3 contained behind Tab 1 all 15,555 text messages and all 1,247 WhatsApp message conversations served by the Prosecutor. Tab 2 repeated the documents behind Tab 1, but with some annotations. It is not necessary to consider these bulk documents further.

33. These tabs, containing the bulk aggregations of the messages, were followed by Tabs 3 through to 19. Behind each of these further tabs were the various message conversations said to demonstrate the identified matter ascribed to them by the Prosecutor. The text messages and the WhatsApp conversations were separated in the groupings behind each of Tabs 3 to 19.

The Prosecutor’s key

36. A document entitled “Further revised key to spreadsheets of text messages and WhatsApp chats relied on by the EPA” (the Prosecutor’s key) was tendered by the Prosecutor becoming Exhibit D. This document contained a brief summary of the purposes for which the text messages and WhatsApp conversations were sought to be tendered, together with a list of the categories grouping the message conversations (identified by the letters from A to Q) of what was said to be demonstrated by each of these categories.

Mr Pasas’s second affidavit

37. An affidavit of 20 September 2021 deposed by Mr George Pasas, a solicitor in the Defendants’ legal team, was read for the Defendants. This affidavit, and the electronic bundle of documents exhibited to it, explained the process by, and the fashion in, which the material in Exhibit 3 had been assembled. This affidavit was the second one deposed by Mr Pasas, his earlier affidavit being addressed in my decision in the Company decision at [71] to [77].

The Defendants’ further documentary material

38. The first of this further documentary material was the electronic bundle of documents that had been exhibited to the second affidavit of Mr Pasas. This electronic bundle of documents became Exhibit 2.

39. The second document tendered for the Defendants was a letter sent by the Prosecutor to the Defendants’ legal representatives. The letter was dated 10 June 2021 and was in response to a request for the provision of consolidated particulars relied upon by the Prosecutor against the Defendants. This letter became Exhibit 4.

The Prosecutor’s key

Introduction

40. The Prosecutor’s key provides assistance for understanding the nature of the general purposes for which the Prosecutor sought to rely upon the text messages and WhatsApp conversations in Exhibit 3.

41. The Prosecutor’s key set out the broad purposes identified by the Prosecutor as the foundation for which the text and WhatsApp message conversations were sought to be tendered. These purposes were:

•   ACE:

o “Attribution of Al Sarray’s conduct” - means “Attribution of Al Sarray’s conduct and knowledge”: s 144AA(2) - a person supplies information about waste to another person in the course of dealing the waste, being information that the person knows is false or misleading in a material respect

o “Attribution of Sidawi’s conduct”: s 144AA(2) - a person supplies information about waste to another person in the course of dealing the waste

•   Allam:

o “Attribution of Al Sarray’s conduct”: s 169A(2)(a) - a corporation commits an executive liability offence; and specifically an element of that executive liability offence being, s 144AA(2) - a person supplies information about waste to another person in the course of dealing the waste

o “Attribution of Sidawi’s conduct”: s 169A(2)(a) - a corporation commits an executive liability offence; and specifically an element of that executive liability offence being, s 144AA(2) - a person supplies information about waste to another person in the course of dealing the waste

o “Constructive knowledge”: s 169A(2)(c)(i) - knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed

o “Failure to take reasonable steps”: s 169A(2)(c)(ii) - fails to take all reasonable steps to prevent or stop the commission of that offence

Substantial agreement is reached

The agreed broad temporal limitation

42. There was agreement reached between the parties that consideration of the text messages and WhatsApp conversations would (subject to the exception noted below) be confined to those within the period 1 September 2016 to 2 December 2017.

43. The agreed exception to the above temporal limitation was that five messages in WhatsApp Conversation 196 (a conversation which took place on 21 August 2021) were included in the scope of the communications to be considered.

44. However, the Defendants retained the right to press objections in relation to the messages which remained (including on the basis of relevance).

Two agreements covering the majority of the categories

45. During the course of the two days during which this phase of the interlocutory proceedings was conducted, the scope for the Prosecutor to be permitted to use many of the identified categories of messages in Exhibit 3 was agreed by the Prosecutor and the legal representatives of the Defendants.

46. Two sets of Consent Orders reflecting those agreements were made by me on 28 September 2021. Copies of those two sets of orders are reproduced as Annexures C and D to this decision. The result of these orders was that it only remained for me to determine the dispute between the parties concerning the use of the text messages and/or WhatsApp conversations in Categories J, K, N, O, P and Q.

47. As later discussed, the outcome of my decision in Allam No 2 was expected to result in how the messages in Categories J and K were to be regarded.

48. The orders I made on 28 September 2021 (as can be seen from Annexures C and D) set out the terms of the agreement between the Prosecutor and the legal representatives of the Defendants as to the agreed range limitations to be applied to the uses of the various messages in each of the categories identified in those orders.

49. As a consequence, there has been no need for me to address, and rule on, the use of any of the messages which had been identified by the Prosecutor as proposed to be utilised in the fashion identified for each of these groups of messages.

The messages are not reproduced

50. In my decision in Allam No 2, I have been able to set out the terms of the various groups of text messages dealt with (as they could be concisely reproduced in a fashion amenable to being understood if incorporated in that judgment). It is not possible to follow this course for the messages that are contained in the categories that remain for me to deal with in this decision arising from the Defendants’ Notice of Motion of 20 September 2021. There are two reasons for this.

1. The first is that there is a significantly greater number of text messages and WhatsApp conversations than was the position with respect to the more limited number of text messages involved in Allam No 2.

2. Second, the multiplicity of text messages and WhatsApp conversations requiring consideration in the various categories (even if only confined to Categories N, O, P and Q) have been reproduced in Exhibit 3 on A3 sheets. Those sheets are not amenable to reproduction as comprehensible images to be attached to this decision. Even had they been amenable to such reproduction, the total number of such sheets would have been inappropriate to be reproduced as they would have rendered this judgment entirely unwieldy.

51. However, I have carefully read each of the individual text messages or WhatsApp conversations in the remaining categories requiring consideration and determination - reading them, as well, in the context of the message conversation attribute which the Prosecutor says is demonstrated by them.

52. Having done so, I have then considered the various text and/or WhatsApp message conversations in the context of the category to which the Prosecutor has assigned them (including considering any repetitions in the context of each of the categories to which the repetition has been assigned by the Prosecutor). It is in this framework that I turned to address the categories remaining in dispute between the parties.

Matters of general consideration

Introduction

53. The agreement between the parties that I make the two sets of Consent Orders on 28 September 2021 meant that only the text messages and WhatsApp conversations assigned by the Prosecutor to Categories N, O, P and Q now require to be addressed (Categories J and K not requiring further consideration at this time for the reasons later explained). It is convenient to repeat, at this point, the matter said by the Prosecutor to be demonstrated by Categories N, O, P and Q. These are:

N.   Sami Allam’s interest in reducing costs.

O.   Munaf Al Sarray’s role and responsibilities in the company ACE and Sami Allam’s knowledge of Al Sarray’s role and responsibilities.

P.   Sidawi’s role and responsibilities in the company ACE and Sami Allam’s knowledge of Sidawi’s role and responsibilities.

Q.   Sidawi’s role in altering weighbridge disposal dockets and Sami Allam’s constructive knowledge in relation to the supply of false or misleading information about waste.

54. As earlier noted, the Prosecutor had filed written submissions in response to the Defendants’ Notice of Motion. In those written submissions, at paragraph 50, the Prosecutor set out a range of matters concerning the various categories into which the Prosecutor had assigned the text messages and/or WhatsApp conversations. This paragraph of the Prosecutor’s written submissions appeared to contain a formatting glitch which inserted a paragraph number in the midst of the list of the matters obviously intended to be sequentially set out. I have ignored this numbering glitch in my reproduction of the relevant elements of this paragraph.

55. Because of the two sets of Consent Orders made on 28 September 2021, much of what was set out in the Prosecutor's paragraph 50 no longer requires consideration. However, for present purposes, this paragraph and its relevant elements are in the following terms:

50   Matters relevant both to attribution and vicarious liability in the charges against ACE and Allam, and to the element of constructive knowledge in charges against Sami Allam, include the following:

(a)   …;

(b)   …;

(c)   …;

(d)   …;

(e)   …;

(f)   …;

(g)   …;

(h)   the roles which Munaf Al Sarray and Ameer Sidawi played, and their responsibilities, in the company, particularly in communications with third parties such as developer clients and waste facilities - including, in the case of Al Sarray, “finishing up” jobs which required accounting for waste ACE had disposed of - and Sami Allam’s knowledge of those roles [categories O and P];

(i)   …;

(j)   …;

(k)   …;

(l)   Sami Allam’s interest in reducing costs [category N];

(m)   …;

(n)   Sidawi’s role in altering weighbridge disposal dockets and Sami Allam’s knowledge of that [Category Q].

The Defendants’ general introductory comments

56. The written submissions on behalf of the Defendants in support of their motion described, in paragraphs 14 and 15, what the Prosecutor had done by the service of the further identified text messages and WhatsApp conversations in the following terms:

14.   Order 2 of the Court’s orders of 25 August 2021 required the EPA to identify “the relevance to a fact or facts in issue in the proceedings of each of the text messages and each of the WhatsApp chats”, although it permitted the EPA to do so “by way of categories of relevance” (which it has elected to do).

15.   The EPA has, for each of the Further Text Messages:

a)   stated whether it is tendered against Mr Allam or both Mr Allam and ACE;

b)   stated whether the text message is said to be relevant to one of three asserted elements of the offences charged, viz:

i.   “attribution” of Mr Al Sarray or Mr Sidawi’s conduct;

ii.   “constructive knowledge”; and

iii.   “failure to take all reasonable steps”;

c)   created the 17 “categories” referred to at paragraph 9 above, each given an identifying letter (A through to Q), and then identified by using those letters which of the categories the particular Further Text Message is said to be relevant to, and in some cases, identified multiple categories for each Further Text Message.

57. This description was not, as I understood the position, challenged by the Prosecutor at the subsequent hearing of the Defendants’ motion.

58. In the Defendants’ written submissions, paragraphs 16 and 17 recorded what are appropriate to be regarded as general introductory comments made concerning what was said to be the broad difficulty faced by the legal representatives of the Defendants in addressing the additional material in the text messages and WhatsApp conversations sought to be relied upon by the Prosecutor. These paragraphs were in the following terms:

16.   It is evident from their terms that the 17 categories which have been created by the EPA are framed at a very high level of generality. As a result, it is not possible simply by classification to a particular lettered category, to ascertain which “fact or facts in issue” each of the 1,692 Further Text Messages (or, indeed, even the 17 categories themselves) are said to relate to, nor what fact or proposition the EPA contends that the Further Text Messages are able to prove. The EPA’s identification of three “element(s) of alleged offence(s)” to which each of the Further Text Messages is said to relate to also does not meaningfully clarify the position.

17.   The limited and generalised statement of the asserted relevance of the Further Text Messages has limited the defendants’ ability to understand what the EPA seeks to have the Court make of this large body of documentary evidence.

The scope of a broad s 136 limitation order

59. The Defendants’ written submissions set out the terms of a broad agreement by the Prosecutor to a limitation pursuant to s 136 of the Evidence Act that the text messages and WhatsApp conversations not falling within Categories J, K or Q were not to be used for the purpose of suggesting any form of dishonest or misleading conduct on the part of the Defendants (Defendants’ written submissions at paragraph 20).

60. To the extent that this has been reflected in a relevant element of the Consent Orders made by me on 28 September 2021, no further steps need be taken. However, to the extent that further limitation is rendered necessary (or proposed as being necessary) by this decision, my decision in Allam No 2, or the Company decision, the directions to be made provide an opportunity for the parties to settle the terms or return to have me address the issue if no agreement is reached. This would include any use restriction in the nature of order 3(c) of the 28 September 2021 orders later discussed.

The Prosecutor’s submissions

Attribution of conduct to the Company

61. The Prosecutor submitted that “the conduct of persons in actual control of particular operations of the corporation will constitute the corporation for particular statutory purposes” (citing Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 at 506) or where the person whose conduct is sought to be attributed to the corporation can be seen to be the guiding mind of that body (citing Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 170 and Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 at 717).

62. It is unnecessary to address the question of whether the general law gives rise to such an attribution for present purposes as the terms of s 169C of the POEO Act expressly deal with this. It does so in the following terms:

169C   Evidence as to state of mind of corporation

(1)   Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.

(2)   In this section, the state of mind of a person includes—

(a)   the knowledge, intention, opinion, belief or purpose of the person, and

(b)   the person’s reasons for the intention, opinion, belief or purpose.

63. However, to the extent that the above provision might be regarded as being insufficiently comprehensive, as I understood the Prosecutor's submission, it was that the attribution theory of corporate liability would apply to cover any potential lacuna here relevant on the basis of the authorities cited above.

The messages in Categories J and K

64. As can be seen from the earlier‑reproduced list, the messages identified by the Prosecutor as falling within Categories J and K are proposed to be used for the purposes attributed to them as noted in the earlier set out list.

65. With respect to these proposed uses of the messages identified in these categories, I was advised that the parties expected that my determination in the proceedings concerning the Prosecutor's proposed tendency use of the text messages, said to demonstrate an “asserted tendency” by Mr Sami Allam (dealt with in Allam No 2), would likely result in resolution of the position to be taken for the messages in Categories J and K, for the purposes of the Defendants’ Notice of Motion of 20 September 2021.

66. The text messages retrieved from Mr Sami Allam’s mobile phone (no WhatsApp conversations being relied upon by the Prosecutor for the “asserted tendency” proposed against Mr Sami Allam) were characterised by the Prosecutor as falling into two distinct groups, with a different characteristic identified for each of these groups. The first group comprised messages where the Prosecutor proposed that actual dishonesty on Mr Sami Allam’s part was demonstrated, whilst the characteristic said by the Prosecutor to arise from the second group was that Mr Sami Allam’s dishonesty was to be inferred from the messages in that group.

67. Although the oral and written submissions concerning these issues dominantly addressed these two categories of groups of text messages on the basis that the same ruling might be expected for the “direct dishonesty” and the “dishonesty inferred” categories of text messages, I raised with the parties the possibility that I might reach a differential conclusion concerning the two distinct categories in my “asserted tendency” ruling.

68. It is appropriate to reproduce the entirety of the relevant exchange I had with Mr Potts on 28 September 2021 (an exchange reflecting what I took to be the agreed position of the parties on the possibility of there being a differential outcome in my determination concerning the Prosecutor’s “asserted tendency” proposed to be relied upon concerning Mr Sami Allam’s conduct). The relevant passage (Transcript 28 September 2021, page 288, lines 19 to 45) was in the following terms:

POTTS: I believe regardless of these agreements, I think the common position in relation to Categories J and K, is that both of those categories will be depending on the outcome of the exhibit A application. So, that if exhibit A is admitted, Categories J and K will be admitted. If exhibit A is rejected, Categories J and K will be rejected. Your Honour doesn't need to decide anything further on Categories J and K.

HIS HONOUR: Before you move from that, let me say this. Exhibit A is in two distinct tranches. That is, the direct attribution and the inferred attribution in shorthand terms. It is at least possible - and I'm not to be taken to be expressing even a tentative view - that they don't necessarily both go in or both go out.

POTTS: Yes, I understand there's an intermediate outcome.

HIS HONOUR: Does that alter what I might end up needing to do in this part of the process with respect to exhibits/tabs J and K?

POTTS: Your Honour, I suspect not, but can I defer that so I can discuss that with my learned friend to see if there's common ground on that?

HIS HONOUR: Yes. I'm just flagging that to you because that's something that I've at least started to think about the possibility of.

POTTS: I'm grateful for that indication, your Honour. Your Honour's right. I don't think we've explicitly discussed the intermediate outcome. I'll take that up with my learned friend. I won't trouble your Honour with that at the moment.

69. As earlier noted, my decision in Allam No 2 has been delivered at the same time as this decision and the Company decision. As I foreshadowed in the above transcript extract might be possible, I have determined in Allam No 2 that most (but not all) the text messages in the text message groups categorised as “direct dishonesty” can be taken to have demonstrated the Prosecutor’s “asserted tendency” in its notice given on 16 July 2021 that:

… the Defendant [Mr Sami Allam] had a tendency to act in a particular way, namely a tendency:

•   to promote a culture, and/or a practice and/or a system of work in the company which involved dishonesty and deception when supplying information to other people in the course of dealing with waste.

70. However, I have rejected the Prosecutor’s proposition that the messages in the groups of such text messages categorised by the Prosecutor as being “dishonesty inferred” provide a proper basis to support the “asserted tendency” set out immediately above as being attributable to Mr Sami Allam.

71. As a consequence of a broader intermediate outcome actually arising, it will now be necessary for the parties to discuss whether or not I need to hear the parties further on how the issues arising from the messages in Categories J and K are to be resolved. To address this outcome, the orders at the conclusion of this decision provide that I will hear the parties on this at a short supplementary hearing on this point, if I am notified within 10 working days of this decision that such a further hearing is required.

The exceptions to the hearsay rule

72. Although a range of submissions were made by the parties concerning whether or not exceptions to the hearsay rule were capable of being engaged with respect to various text messages and/or WhatsApp conversations, I was advised that the issue had been resolved by discussion between the parties (Transcript 28 September 2021, page 304, lines 2 to 7).

Consideration of the Categories N, O, P and Q messages

Introduction

73. The four matters said by the Prosecutor to be demonstrated by the text messages and/or WhatsApp conversations in Categories N, O, P and Q are repeated below:

N.   Sami Allam’s interest in reducing costs.

O.   Al Sarray’s role and responsibilities in the company ACE and Sami Allam’s knowledge of Al Sarray’s role and responsibilities.

P.   Sidawi’s role and responsibilities in the company ACE and Sami Allam’s knowledge of Sidawi’s role and responsibilities.

Q.   Sidawi’s role in altering weighbridge disposal dockets and Sami Allam’s constructive knowledge in relation to the supply of false or misleading information about waste.

The general issue of relevance

74. Before turning to each of the remaining categories, it is appropriate to consider the question of relevance - it been advanced for the Defendants that none of the matters said by the Prosecutor to be demonstrated by the remaining categories are relevant to facts that will be in issue at trial. In this regard, the Defendants’ written submissions said:

55   None of the Further Text Messages set out in Table B above could, on any view, rationally affect directly or indirectly the assessment of the probability of the existence of a fact in issue in the proceeding.

56   Given the sheer number of the Further Text Messages, the defendants facing criminal charges should not be left to divine for themselves the apparent relevance of any particular Further Text Messages. It is for the EPA to demonstrate, as a pre-condition of admissibility, their relevance, and they have not done so.

75. I am satisfied that, at the broad level of generality appropriate to be considered at this pre‑trial point, that the four matters said to be demonstrated by the text messages or WhatsApp conversations assigned by the Prosecutor to Categories N, O, P and Q are matters sufficiently potentially relevant to the charges which have been laid against the Company and/or Mr Sami Allam.

76. To the extent which the messages will (or will not) contribute to establishing the truth of a fact in issue with respect to the charges, that is a matter which necessarily awaits consideration at trial, when the totality of the Prosecutor’s evidence is adduced and a more detailed exposition is undertaken by the Prosecutor of how these messages are said, specifically, to contribute to matters required to be proved by the Prosecutor.

The issue of a general limitation

77. In his oral submissions, in the context of Category N, Mr Potts made a submission, as I understood him, of general application to the four categories remaining to be considered. He said (Transcript 28 September 2021, page 291, lines 8 to 15):

POTTS: … If your Honour's against me on the question of relevance, we would say there should be a limitation equivalent to that in order 3, para (c) of the orders your Honour's just made in relation to the other categories.

78. I have set out, at [143], how further limitations will be addressed if not resolved between the parties.

Category N

Introduction

79. This category has been designated by the Prosecutor as demonstrating “Sami Allam’s interest in reducing costs”. After application of the temporal limitation, it contains seven WhatsApp conversations. All of these message conversations appear in more than one of the Prosecutor’s identified categories.

The Defendants’ position

80. The written submissions on behalf of the Defendants concerning the messages in this category were confined to giving one example from the messages in the category (the WhatsApp conversation in item 139) and proposing, in paragraph 52, that this example was:

illustrative of the fact that many of the Further Text Messages bear little if any relation to even the extremely broad category description assigned to them.

81. The oral submissions on behalf of the Defendants concerning the messages in Category N were in the following terms (Transcript 27 September 2021, page 284, line 27 to page 285, line 4):

There is … only one more I need to deal with and that's category N, which is said to be the category description, Sami Allam's interest in reducing costs. At that level of generality, we really wonder what, if anything, that's capable of proving. But equally, when your Honour looks at category N in the exhibit 3 bundle, your Honour will see the sorts of things that these texts - and there's only seven conversations. I'm sorry, I withdraw that, there are seven text messages and then there are nine WhatsApp messages and the conversation.

Again we point to our temporal objections, but we say, for instance, item 120 which is the second item on the first page which is a four-text exchange between Mr Sami Allam and Mr Bachar Allam about two truck drivers are leaving because of rates and they’re saying they’re not making money with ACE. Well, we’re not really sure what that’s capable of proving about Sami Allam’s interest in reducing costs. Presumably, it’s said - your Honour, I don’t quite know. There seems to be some suggestion that over and above what one would ordinarily expect to be the case that any businessman doesn't want to throw money away and therefore costs are always an issue, there seems to be some suggestion that Mr Allam, it's going to be sought to be proven, had some peculiar or special interest in reducing costs and that is in some way a relevant contextual fact towards he had or ought reasonably have known of the commission of the executive liability offences on the three dates.

What we say is, looked at in its totality, and as I say there are only 16 conversations in total in category N, individually or collectively these really don’t prove anything about Mr Allam’s so-called interest which could in any way be probative as a contextual fact relevant to an assessment of whether or not he ought reasonably to have known that the executive liability offence would be or was being committed. We say this is one example where it is simply irrelevant. We say the category is irrelevant. We say the texts are irrelevant and we say if we’re wrong in that we, of course, press our temporal objections in both their forms. We, of course, would say to the extent that your Honour concludes that it is capable of being relevant in some fashion, again, it would appropriately be subject to section 136 orders which would see the texts limited to proof of the category label, Sami Allam’s interest in reducing costs, and no other, and would be limited to a non‑hearsay use, but this is one category that we say just is incapable of being relevant.

The Prosecutor’s position

82. The Prosecutor subsequently indicated that it was accepted that the text messages outside the timeframe noted by Mr Potts in the above extract meant the messages in item 229 (being four messages exchanged on 15 December 2017) were not pressed. In the WhatsApp conversations within Category N, the Prosecutor noted that those within item 200 (a group of messages comprising an exchange on 30 August 2016) and item 130 (comprising an exchange on 1 March 2018) were also not pressed (as being outside the agreed timeframe).

83. The Prosecutor also indicated that, with respect to the messages comprising an exchange between Mr Sami Allam and Mr Bachar Allam on 17 April 2017 (in item 120 of the text messages of that date), the Prosecutor did not press that exchange of text messages. As can be seen in the transcript extract reproduced above, item 120 in Category N was subject of a specific submission from Mr Potts as to its irrelevance to the proposition said by the Prosecutor to be demonstrated by the text messages and WhatsApp conversations in this category.

84. With respect to relevance of the remaining messages in Category N, the Prosecutor submitted (Transcript 28 September 2021, page 293, line 33 to page 294, line 2):

PROSECUTOR: … As to relevance, it is the Prosecutor’s case, that part of Mr Allam's state of mind is that he wanted to reduce the costs that his company was charged when it lawfully disposed of waste. We submit the evidence is that he was aware of work practices like picking, screening and backfilling, which allowed for the avoidance of having to take waste to waste facilities that would charge ACE money to dispose of waste there. The bi product of that however, was that to Mr Allam's knowledge, it led to a shortfall in dockets. The dockets which ACE need to provide to developer clients to account for the removal or disposal of waste they had generated at the worksite. I interpolate, your Honour, that similarly disposing of waste at Arcadia was something which saved ACE having to pay an official waste facility to dispose there of waste. That it led, to Mr Allam's knowledge, to a shortfall in dockets. Your Honour, this makes it more likely, we submit, that Mr Allam ought reasonably to have known that the executive liability offences were being committed. That is to say, to make up for shortfalls in dockets which had been brought about by, amongst other reasons, the reduction in the costs incurred by ACE by engaging in the work practices at worksites that I've mentioned. I'll be told by my betters, if this is out of place. We, I don't think, - disagree with a limiting order as per part 3 of the short minutes of orders if your Honour rules that the category N messages are admissible.

Consideration

85. I have carefully considered all of the messages and conversations that are within Category N. Other than item 45 in the WhatsApp conversations within this category, I am satisfied that, with that exception, all of the conversations (other than conversations not pressed by the Prosecutor) are capable of demonstrating Mr Sami Allam’s interest in reducing costs.

86. The exception I have identified is the WhatsApp message identified in item 45 (there being only message in that item). This is a message from Mr Sami Allam to one of the Company’s clients, seeking to have the client pay to Company at least portion of a significant contract debt owed by that client to the Company. This message says nothing about cost reduction, it is confined to an issue of debt recovery. This item is, therefore, rejected for its use as proposed by Category N.

87. The remaining messages are permitted for the proposed purpose.

Category O

Introduction

88. This category has been designated by the Prosecutor as demonstrating “Munaf Al Sarray’s role and responsibilities in the company ACE and Sami Allam’s knowledge of Al Sarray’s role and responsibilities”.

89. It contains six text message conversations and 40 complete WhatsApp conversations and the limited number of August 2016 messages from WhatsApp conversation 196. Only some of these conversations appear in more than one of the Prosecutor’s identified categories.

The agreed temporal limitation

90. For the messages in Categories O and P, the Prosecutor explained the exception to the temporal limitation in the following terms (Transcript 28 September 2021, page 294, lines 22 to 26):

PROSECUTOR: … The temporal limitation being the same as for the other categories of nothing earlier than 1 September 2016 apart from the messages in item 196 in the category O WhatsApp messages and category P. Your Honour, the exception is sought as to the messages within 196, which are numbered 22986, 22987, 22988, 22989, 22990. In other words, it's not for the whole of item 196, but rather messages 22986 through to 22990.

91. This limited exception to the temporal limitation for message conversation 196 was accepted for the Defendants.

92. The consequence of this was that no text messages or text message conversations were excluded from Category O, but 33 WhatsApp conversations outside the agreed temporal period and remaining portion of the item 196 WhatsApp conversation were excluded.

The Defendants’ position

93. The written submissions on behalf of the Defendants concerning the messages in this category were also confined to giving one example from the messages in the category (the WhatsApp conversation in item 184) and proposing, in paragraph 52, that this example was:

illustrative of the fact that many of the Further Text Messages bear little if any relation to even the extremely broad category description assigned to them.

94. The oral submissions on behalf of the Defendants concerning the messages in this category were brief. The Defendants’ position, as outlined by Mr Potts concerning Categories O and P, was a common one, being in the following terms (Transcript 28 September 2021, page 291, lines 24 to 27):

POTTS: … We say that the confined tender still doesn't demonstrate relevance to any question of attribution and if we're wrong in that, we again press for the same para 3(c) limitation from the orders your Honour's just made.

The Prosecutor’s position

95. In his oral submissions, the Prosecutor said, with respect to the Category O messages (Transcript 28 September 2021, page 296, lines 21 to 26):

Your Honour the defendants have said that they have admitted in the agreed facts aspects of Al Sarray's responsibilities; and that therefore argue that category O messages have no work to do and should be excluded. But your Honour the important thing is that the defendants do not admit that Mr Allam was aware, that is to say, he had knowledge of Mr Al Sarray's responsibilities.

96. The Prosecutor then drew attention to the fact that, in response to the Prosecutor’s Revised Draft Statement of Facts, the legal representatives of the Defendants had struck through the element of the Prosecutor’s Revised Draft Statement of Facts where it asserted that Mr Sami Allam was aware that of Mr Al Sarray’s responsibilities. The Prosecutor then submitted that, as a consequence, that aspect was a live matter in contention in the proceedings.

97. The Prosecutor next submitted that text conversation item 203 and WhatsApp conversation 212 had particular relevance concerning Mr Sami Allam’s knowledge of Mr Al Sarray’s roles and responsibilities, but that the Prosecutor relied on the entirety of the messages (both text and WhatsApp) in this category for that purpose.

Consideration

98. I have carefully read the six text message conversations in Category O which the Prosecutor says demonstrate “Munaf Al Sarray’s role and responsibilities in the company ACE and Sami Allam’s knowledge of Al Sarray’s role and responsibilities”.

99. Although the example cited in the Defendants’ written submissions (of the WhatsApp conversation in item 184) might be regarded as a trivial aspect of what the Prosecutor submits is demonstrated by the Category O messages, nonetheless, it can be seen to satisfy the Prosecutor’s identified matters.

100. It is to be noted that message 23265 in WhatsApp item 212 includes a short element of Arabic script, followed by a frowning emoji. Ignoring this, I am satisfied that the remainder of this item supports the matters as proposed by the Prosecutor.

101. WhatsApp item 227 (Friday 7 April 2017) comprises messages 23536 to 23540. The first three of these messages is in temporal proximity and appears to comprise a conversation. The second pair of messages (23539 and 23540) comprises an exchange which takes place some four days after the earlier three messages. This pair would appear to comprise a separate WhatsApp conversation. Taken in this fashion, the two separate WhatsApp conversations in item 227 both support the inference proposed by the Prosecutor to be drawn from them.

102. Subject to the above matters of detail, I am satisfied that all of the WhatsApp conversations in the various items falling within the agreed temporal period (together with the five messages in item 196) are appropriate to demonstrate what is proposed by the Prosecutor for Category O.

Category P

Introduction

103. This category has been designated by the Prosecutor as demonstrating “Sidawi’s role and responsibilities in the company ACE and Sami Allam’s knowledge of Sidawi’s role and responsibilities”. It contains 11 text message conversations and, as noted below, the five messages from the WhatsApp conversation in item 196. All of these conversations appear in more than one of the Prosecutor’s identified categories.

The Defendants’ position

104. As with Categories N and O, the written submissions on behalf of the Defendants concerning the messages in this category were confined to giving one example from the messages in the category (a text message in item 152) and proposing, in paragraph 52, that this example was:

illustrative of the fact that many of the Further Text Messages bear little if any relation to even the extremely broad category description assigned to them.

105. The oral submissions on behalf of the Defendants concerning the messages in this category were also brief. As noted above with Category O, the position advanced on behalf of the Defendants was (Transcript 28 September 2021, page 291, lines 24 to 27):

POTTS: … We say that the confined tender still doesn't demonstrate relevance to any question of attribution and if we're wrong in that, we again press for the same para 3(c) limitation from the orders your Honour's just made.

The Prosecutor’s position

106. At the time of dealing with the messages in Category O, the Prosecutor applied for leave to amend to permit the messages numbered 22986 through to 22990, which were then only included in item 196 in Category O, also to be included in Category P of the WhatsApp conversations in that category. This proposed amendment was not opposed on behalf of the Defendants and leave was granted for that amendment to be made. To record that amendment, I have had a label made which, as I noted to the parties I would, I inserted on the blank WhatsApp page in Category P to record the fact of that amendment.

Consideration

107. In the text message conversations in Category P, it seems to me that items 65 and 66, together with the two messages subsequent to item 66 but attributed back to item 65, in fact all appear to be a single text message conversation or, if not, items 65 and 66 appear to be a separate conversation and messages 5425 and 5426 may not belong in this conversation at all.

108. Subject to the above comment which does not impact on that which the Prosecutor says is to be taken from all these message conversations, I am satisfied that all of the text message conversations in Category P can be regarded as demonstrating “Sidawi’s role and responsibilities in the company ACE and Sami Allam’s knowledge of Sidawi’s role and responsibilities”.

109. The only WhatsApp conversation in Category P are the five messages from item 196 in Category O that were added to Category P pursuant to leave granted on 28 September 2021, as earlier described.

107. I am satisfied that these messages, taken together, can be regarded as demonstrating “Sidawi’s role and responsibilities in the company ACE and Sami Allam’s knowledge of Sidawi’s role and responsibilities” advanced by the Prosecutor.

Category Q

Introduction

111. This category has been designated by the Prosecutor as demonstrating “Sidawi’s role in altering weighbridge disposal dockets and Sami Allam’s constructive knowledge in relation to the supply of false or misleading information about waste”. It contains only five text messages in a single text message conversation and no WhatsApp conversations. The text message conversation appears in five other of the Prosecutor’s identified categories.

The Defendants’ position

112. With respect to Category Q, the Defendants’ written submission was, in paragraph 50(b):

(b)   as to Category Q, this contains only one conversation which is also identified as falling within Category J, being a conversation not otherwise within the Exhibit A Text Messages. Again, for the reasons set out at paragraphs 18-19 above, the Court should not permit the EPA to reagitate such issues here

113. Mr Potts’ oral submissions were (Transcript 27 September 2021, page 267, line 43 to page 268, line 20):

The final category that we understand to be relied upon in the corporate offences is Category Q and this is a single conversation which your Honour sees at item 148 in the last tab. The category is said to be Sidawi’s role in altering weighbridge disposal dockets and Sami Allam’s constructive knowledge in relation to supply of false or misleading information about waste. Your Honour will see the five-text exchange there and your Honour will see the five-text exchange there and your Honour will see - and we don't necessarily apprehend it to be suggested that - if I'm wrong about this I'm happy to be corrected - this is evidence of anything to do with dockets that form the attachments to any of the emails charged. So we don't apprehend it to be advanced on the basis this subject matter is directly relevant to the attachments to the emails.

We understand that this is proffered as some other exchange in relation to dockets that can't be specifically tied to any of the emails. If that's right, then this, we say, can only be relevant in the same way as we argued on the earlier applications, as tendency evidence. Because the fact that Mr Sidawi - we don't accept I should say that it's an available reading of these text messages that this involves any form of alteration, the expression is fixed. Our friends want to read something sinister into that, but we submit that this couldn't be relevant to any question that might actually arise and your Honour will remember the allegations against Mr Sidawi are against - I'm sorry, ACE involving Mr Sidawi altering things - are that he did that under the direction of Mr Al Sarray. Now, this is one example where we say Category Q is not in terms relevant, Category Q in terms of item 1 through 8 can only be relevant as a tendency. Your Honour knows there's no further tendency evidence, and otherwise it was not used for a tendency purpose, it's not capable of being relevant.

114. Mr Potts later said (Transcript 28 September 2021, page 291, lines 27 to 30):

POTTS: … Finally, that leaves Category Q, which has the one WhatsApp message in it. We say that can only be relevant as tendency, there is no tendency notice, it's otherwise irrelevant, and again if we're wrong in that we press for the para 3(c) limitations.

The Prosecutor’s position

115. The Prosecutor’s oral submissions made clear the basis for which it was contended that these messages demonstrated the proposition said to be derived from them (Transcript 28 September 2021, page 298, line 44 to page 299, line 36):

PROSECUTOR: … Category Q, this is the sole text message which is item 148. Your Honour, the relevance of it is, as you will see, your Honour, in exhibit EES-1, Tab 4, just check that I've got the right documents, sorry, yes, it is, your Honour again has the defendant's response to the prosecutor's revised draft statement of facts. On p 17 of that document, para 59, the defendants had put in issue that Mr Allam knew that Mr Sidawi, an accounts payable clerk and contracts administrator employed by Ace, was responsible amongst other things for communicating with clients and their agents. Such as their environmental engineers and site auditors, and under the direction of Mr Al Sarray for sending the clients and their agents documents relating to the disposal of waste by Ace.

In the consolidated particulars we had pleaded the knowledge that we say Mr Allam had of Mr Sidawi's role at the company, that's in exhibit 4 pp 107 and 115, and in each case it's para (c) on that particular page. The message or the messages in that chat are on 30 May 2017. Your Honour, that is between the date of the first offence charged and the second offence charged. The prosecutor says that a characteristic of the April offence is that while the dockets were supplied to the developer of the premises at Wolli Creek, many altered dockets nevertheless retained printed overt indications of the true source of the waste being another site. That's in the agreed statement of facts, your Honour, referenced sorry in the agreed statement of facts, para 28.

We submit that that is a problem for trying to pass off dockets which are in relation to waste from other premises as being for waste from the Wolli Creek premises. These messages in item 148 in Category Q by Sami Allam to Ameer Sidawi are probative of, firstly, Mr Sidawi's role in altering dockets generally and Sami Allam's knowledge or constructive knowledge as to the supply of false or misleading information about waste. Your Honour, I need to make clear it is not the prosecutor's case that Mr Allam instructed Sidawi to alter dockets the subject of the charges and the prosecutor doesn't rely on these messages to prove such a fact. They are relevant instead to the doctoring of dockets generally and Mr Allam's constructive knowledge about that.

There's no breach of the hearsay rule in tendering the messages to prove Mr Allam's constructive knowledge of the supply of false or misleading information about waste. We submit that there is no breach of the hearsay rule involved in the prosecutor relying on the messages to assist in proof of Mr Sidawi's role in altering weighbridge disposal dockets. There will be an inference available from the exchange but it is not a fact it might reasonably be supposed that Sami Allam was asserting. If we are wrong about that, then we rely upon the business records exception to the hearsay rule.

Consideration

116. Category Q comprises a single text message conversation containing five messages. There are no WhatsApp conversations in this category.

117. The messages in Category Q comprised five text messages, all dated 30 May 2017. The messages were exchanged between Ameer Sidawi and Mr Sami Allam over a period of approximately three minutes shortly after midday. These messages are the only ones necessary to be reproduced in order to enable me to rule on them for the purposes of this interlocutory application. The participants in the Category Q text message exchange and the terms of the five messages are set out in the table below:

Participants

Message

From Ameer Sidawi

To Sami

Sorry forgot to message you total tonnage 4140.82

From Sami

To Ameer Sidawi

Did u fix dockets

From Ameer Sidawi

To Sami

Not yet

From Ameer Sidawi

To Sami

Working on it

From Sami

To Ameer Sidawi

OK

118. The essence of the proposition said to be demonstrated by these five messages relies, totally, on the Prosecutor’s assumption that the use of the word “fix” in the second of the messages reproduced, as forming part of this text message exchange, is a perfect and exclusive synonym for the word “falsify”.

119. I am unable to accept that proposition. I am satisfied that there are other potential interpretations (ones not necessary to explore in some hypothetical sense) as to what Mr Sami Allam might have meant by using the word “fix”.

120. In circumstances where no inevitable conclusion arises that would support the proposition advanced by the Prosecutor as being demonstrated by this limited text message exchange (particularly in circumstances where there is no suggestion on behalf of the Prosecutor that it is merely part of some broader and more explanatory text message and/or WhatsApp conversation exchange between Mr Sami Allam and Mr Sidawi), I cannot be satisfied that what the Prosecutor says is demonstrated by these messages is in fact so demonstrated.

121. As a consequence, the text message exchange in Category Q is rejected for the purpose of demonstrating “Sidawi’s role in altering weighbridge disposal dockets and Sami Allam’s constructive knowledge in relation to the supply of false or misleading information about waste”.

Should there be a general discretionary exclusion?

Introduction

122. I have earlier set outss 135 and 137 of the Evidence Act and the definition of “probative value” contained in the Dictionary to that Act.

123. It was submitted for the Defendants that a proper consideration of the balance between such probative value as might exist for the various categories of text messages and WhatsApp conversations, on one hand, and the prejudice to the Company and/or Mr Sami Allam, on the other hand, should result in a finding that the balance was against the Prosecutor. As a consequence, the text messages and WhatsApp conversations in the remaining disputed categories should be excluded.

124. It is to be noted that the written submissions on behalf of the parties were prepared prior to the various agreements embodied in the Consent Orders which I made on 28 September 2021. They were, therefore, prepared in an all‑encompassing fashion. However, as I need to determine the fate of the text messages and WhatsApp conversations in Categories N, O, P and Q, I set out the relevant portions of the parties’ written submissions on these exclusionary matters.

The submissions for the Defendants

125. The Defendants’ written submissions on this matter were set out at paragraphs 68 to 71:

Section 135 and 137 - omnibus tender

68.   The attempt by the EPA to introduce evidence in this manner, by omnibus tender of a bundle of nearly 1700 assorted text messages, without a proper explanation of the claimed relevance of the various messages to these proceedings, or more particularly, to the charges laid against the defendants, is unfair to a responding party. That is especially so in a criminal proceeding. The defendants are left to wonder and to discern for themselves what might possibly comprise relevant evidence within that omnibus tender, and face a real risk of surprise that the prosecutor may seek to put that evidence to some use that is not currently evident. That is in the context where there has been detailed correspondence seeking full particularisation of the charges, a lengthy and substantial statements of facts has been agreed, and the Court has already heard four days of argument on a much smaller sub-set of similar messages.

69.   The time and cost required to review and digest such material, where the use to which it is to be put, and the inferences sought to be drawn from it are, at best, opaque, is also unfair and oppressive.

70. Any limited probative value of the Further Text Messages is in this regard outweighed by the danger of unfair prejudice to the defendants, and an undue waste of time. The Court should for such reasons, exercise its discretion under ss 135 or 137 of the Act to refuse to admit the evidence.

71. If the Court is not minded to do that, to ameliorate the risk of unfair surprise, the Court should nonetheless make a broad form s 136 limiting order, that the only use that can be made of the Further Text Messages is to prove the fact asserted in each of the 17 lettered category descriptions, and limiting the evidence which can be used to prove those category descriptions to only those Further Text Messages that have been identified by the EPA as falling within each lettered category. To do otherwise leaves the defendants at real risk of being taken by surprise if the prosecution then later seeks to assert that some relevant fact is established by one or more of the 1,692 Further Text Messages beyond the category description.

The submissions for the Prosecutor

126. The Defendants’ written submissions on this matter were set out at paragraphs 113 to 119:

113. In order to apply s 135 Evidence Act, it is necessary for the Court to undertake three related tasks:

(a)   to be satisfied of a risk of unfair prejudice to the Defendant;

(b)   to make an assessment of the probative value of the evidence, and then

(c)   to assess whether that probative value is “substantially outweighed” by the danger that the evidence might be unfairly prejudicial.

114.   The Court then has a discretion - it “may refuse to admit the evidence”.

115. To apply s 137, it is necessary for the Court to undertake tasks (a) and (b) above and then to assess whether the probative value is outweighed by the danger of unfair prejudice to the Defendant. In the event it is so satisfied, the Court “must refuse to admit the evidence”.

116.   In support of a complaint of prejudice, the Defendant complains that the Prosecutor is attempting to introduce evidence “in this manner, by omnibus tender of a bundle of nearly 1700 assorted text messages without a proper explanation of [their] claimed relevance” and talks of “the time and the cost” required to review and digest such material.

117.   In response, it is submitted that it was the Defendants’ application to bring on its objections to this evidence, pre-hearing, and therefore its consideration of that evidence. By its Key as to relevance and by its identification of the offence element or elements to which the messages go, the Prosecutor has responded to the objections by providing a statement as to asserted relevance for each message. There is no evidence as to the “the time and the cost” required to review and digest the evidence.

118.   More to the point, however, it is not unusual for evidence in a prosecution case to be voluminous and extremely detailed. Nor is it a ground for exclusion of evidence. If it were, prosecutions relying upon complex and voluminous evidence would for that reason be defeated.

119.   In this case, the issues of attribution and constructive knowledge call for the Prosecutor to adduce evidence which demonstrates the operations of the company in a detailed way, as well as the roles of employees, and Mr Allam’s knowledge of those aspects over an extended period of time.

Probative value versus danger of unfair prejudice

127. In the Company decision, I also dealt with submissions on behalf of the Company that, if the tendency evidence which was being considered in that decision passed the various tests in ss 97 and 101 of the Evidence Act, the tendency evidence should be excluded pursuant to ss 135 or 137 of the Evidence Act.

128. The same issues that I addressed in the Company decision concerning those potentially exclusionary provisions also arise in the context of this decision. Here, exclusion of the additional categories of text messages and WhatsApp conversations were appropriate to be excluded. It was submitted, on behalf of the Defendants, that they would have a prejudicial effect that outweighed their probative value, thus leading, on the Defendants’ submission, to them being excluded.

129. It is, therefore, appropriate for me to repeat, in an adapted fashion, my analysis and conclusions concerning ss 135 and 137 as set out in the Company decision, given that I have reached the same conclusion as being appropriate concerning the text messages and WhatsApp conversations contained in Categories N, O, P and Q being dealt with in this decision.

130. Relevant to my consideration here is the decision of the Court of Criminal Appeal in R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112. In that decision, Spigelman CJ addressed the question of the tension between the decision of the High Court in Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 and Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 as to how the definition of “probative value” should be approached. The Chief Justice concluded, favouring the position adopted by Gaudron J in Adam v The Queen, at [60] to [62]:

60.   The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach.

61.   In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, “the extent to which the evidence could rationally affect the assessment …”. The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has “probative value”, as defined, if it is capable of supporting a verdict of guilty.

62.   This conclusion is reinforced by the test that evidence must “rationally affect” the assessment. As Gaudron J emphasised in Adam supra, a “test” of ‘rationality’ also directs attention to capability rather than weight.

131. In this context, because the trial of the Company and Sami will be one by a judge‑alone (as is the case for all criminal trials in this Court), I am satisfied that the risk of the trial judge not having proper regard to necessary issues of reliability and credibility in assessing the probative value to be accorded to the “asserted tendency” is minimal and not one which would give rise to any potential unfair prejudice to the Company.

132. It is also appropriate to note the further relevant observation by Spigelman CJ in Shamouil at [72]. His Honour's observation was in the following terms:

72.   There is now a considerable body of case law in this Court which emphasises the fact that the assessment of this element requires any prejudice to be unfair. There must be a real risk that the evidence will be misused by the jury in some way and that that risk will exist notwithstanding the proper directions which it should be assumed the Court will give [citation omitted].

133. In circumstances where, as earlier noted, the trial of the Company and Sami will be a judge‑alone one, without the involvement of a jury, I am satisfied that this process, assisted by competent and experienced counsel, as was here (and will be at trial) the case, there is no risk of misuse of the categories of text messages and WhatsApp conversations and what they are said to demonstrate in a fashion which would cause prejudice to the Company or Sami in the fashion postulated by the statutory provisions.

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

134. At paragraph 121 of the Prosecutor’s written submissions, it was submitted on the matter of time:

Finally, the Defendant has another two months within which to consider the material.

135. Although written in the context of the then scheduled November 2021 hearing commencement (the hearing now being scheduled to commence on 25 July 2022), the Defendants’ legal representatives have had since 28 September 2021 to consider what might need to be addressed arising from the Consent Orders made on that date and will have some further two‑and‑a‑half months to consider the three further interlocutory decisions. The trial is listed for five weeks. I am satisfied that the demands of considering and addressing the various text messages and WhatsApp conversations will not be so time‑demanding to require their discretionary exclusion pursuant to s 135(c) of the Evidence Act.

The addition of messages to Categories J and K

136. The Defendants’ written submissions addressed the position where the Prosecutor seeks to add messages to Categories J and K where the matters which had been argued in the earlier phases of the proceedings had addressed these types of messages (and were to be - and now are - the subject of my decision in Allam No 2). In this regard, the written submissions said, at paragraphs 18 and 19:

18.   The defendants are also concerned at what appears to be an attempt by the EPA to re-canvas matters which have already been the subject of a multi-day hearing and on which the Court is presently reserved. Categories J and K entirely overlap (in their asserted relevant subject matter and purpose) with the Exhibit A Text Messages. The EPA has sought to include a limited number of additional text messages within those two categories (although it has since partly withdrawn from that position). The defendants do not accept that it is now open to the EPA to do so in this indirect way.

19. No explanation has been provided by the EPA for its failure to include these additional messages in the Exhibit A Text Messages when the 16 July Motion and the EPA Motions were heard. Notably, the Court’s earlier orders required the EPA to file any tendency notices pursuant to s 97(1)(a) of the Act by 16 July 2021. The Court should, in its discretion, reject the tender of any Further Text Messages within Categories J and K that are not already part of the Exhibit A Text Messages.

137. As part of paragraph 51(a), it was also submitted for the Defendants concerning Categories J and K that:

To the extent there are additional messages included in the Further Text Messages which are assigned to Categories J and K, the Court, as a matter of fairness, ought not permit the EPA to attempt to agitate for their admission now, on bases that were squarely argued and addressed in the hearing of the earlier applications;

138. Mr Potts adverted to this in his oral submissions during the discussion on “parking” Categories J and K until I had given my decision in Allam No 2. He observed (Transcript 28 September 2021, page 290, line 45 to page 291, line 4):

POTTS: Yes, your Honour, and that's understood. All I think I'm intending to convey to your Honour is if your Honour, for example, ruled in that manner, I think the parties would confer, and I suspect at least in terms of category K that would take care of category K if not entirely then in very large measure. The only outstanding issue would be whether your Honour's ruling would have an implication which the parties could agree for the five conversations in Category J that don't directly appear in exhibit A. One would hope, parties behaving sensibly, would be able to agree either the implication of the ruling on the exhibit A messages, or, if not, confine that dispute to a fairly narrow one.

Future progression of the matters

139. If the question of adding of messages to Category J is not resolved during the discussions to follow the parties’ consideration of my decision in Allam No 2, the Prosecutor will have the opportunity, at any further hearing, to explain to me why it should be permitted to add those messages.

140. As a consequence of the agreements between the Prosecutor and the legal representatives of the Defendants giving rise to the two sets of Consent Orders made on 28 September 2021, much of what had been the subject of the oral submissions on the preceding hearing day became no longer relevant.

141. For the purposes of what remained to be addressed by this decision, I am confident that I have determined all necessary outstanding matters. However, given the intermingling of the general and specific matters dealt with in this phase of these interlocutory proceedings, it is appropriate that, at the mention provided for in the directions below (if one is needed), the parties will have the opportunity to identify to me any further matters which might require a supplementary decision.

Directions

142. Given that orders 1 and 2 sought in the Defendants’ Notice of Motion, as set out at [13], have been addressed substantively, with respect to all categories of text messages and WhatsApp conversations other than Categories J, K, N, O, P and Q by the Consent Orders made on 28 September 2021, and as the Prosecutor indicated that order 3 in the Defendants’ Notice of Motion was agreed to, it is appropriate to give directions to the parties to enable preparation of formal orders to give effect to the conclusions which I have set out in this decision concerning the remaining categories and to give effect to implementation of proposed order 3 sought in the Defendants’ Notice of Motion.

143. I therefore give the following directions:

1. The parties are directed to settle orders to give effect to my determinations concerning the unresolved message categories (other than Categories J and K as identified by the Prosecutor) the subject of Defendants’ Notice of Motion filed on 20 September 2021, with those orders to be provided to my Associate by the close of business on 23 May 2022;

2. If those orders are provided to my Associate by the close of business on 23 May 2022, I will make those orders in chambers;

3. If, in light of this decision, and my decision in Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7, the parties reach agreement on the orders to be made with respect to the messages in Categories J and K as identified by the Prosecutor and the terms of those orders are provided to my Associate by the close of business on 23 May 2022, I will make those orders in chambers;

4. The matters are to be set down for mention before me on 25 May 2022 for the purposes of setting a date for any necessary short supplementary hearing that may be necessary concerning the orders needed to give effect to this decision and my decisions in Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7 and Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 44;

5. If no further hearing is required to settle the terms of the orders to give effect to my determinations in these proceedings or in Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7 and Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 44, all matters are adjourned until 25 July 2022; and

6. Liberty to relist before Moore J after giving at least three days’ notice of the proposed relisting.

**********

Annexure A

Summary Table of Charges

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

Annexure B

In the Land and Environment Court

EPA v ACE Demolition & Excavation Pty Ltd & Allam

2020/357465-8 and 2020/357475-7

Preliminary Hearings - Evidence of the parties

Marked Documents

Prosecution

Exhibit A - Annotated spreadsheet as to text messages

Exhibit B - Agreed Summary Table of Charges

Exhibit C - Agreed Statement of Facts

Defence

Exhibit 1 - Letter from EPA to Clayton Utz dated 2 August 2021

Prosecution evidence - tendered on all applications

•   Affidavit evidence:

1. Elizabeth Emily Spain affidavit affirmed 15 July 2021- in folder 2 of USB, item 1

2. Elizabeth Emily Spain affidavit affirmed 30 July- in folder 3 of USB, item 1

3. Carney Gar Leung Yu affidavit- in folder 3 of USB, item 2

4. Kate Bleakman affidavit- in folder 3 of USB, item 3

5. Benjamin James Dales affidavit- in folder 3 of USB, item 5

•   Exhibits:

1. EES-1 to Spain 15 July affidavit- in folder 2 of USB, item 2

2. KB-1 to Bleakman affidavit- in folder 3 of USB, item 4

3. BJD-1 to Dales affidavit- in folder 3 of USB, item 5

•   Aide memoires:

1. Spreadsheet as to text messages - in folder 4 of USB, item 1 [which is an extract from spreadsheet in tab 16 of ex EES-1- also from tab 2 of ex BJD1 and tab 2 of ex KB1]

Defence evidence - tendered on all applications

•   Affidavit evidence:

1. Elodie Jane Cheesman affirmed 16 July 2021 pghs [1]-[4], [21]­
   [35] only- in Folder B Folder 1 of Defendants' USB

2. George Paul Pasas sworn 30 July 2021- in Folder B Folder 1 of Defendants' USB

3. Roberto Antonio Pupo sworn 23 June 2020 paragraphs [125]­
   [126] only- in Folder C of Defendants' USB

4. Carney Gar Leung Yu affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)

5. Kate Bleakman affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)

6. Benjamin James Dales affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)

•   Exhibits:

1. EJC-1 to Cheesman affidavit pages 21-125 only in Folder B Folder 1 of Defendants' USB

2. GP-1 to Pasas affidavit- in Folder B Folder 1 of Defendants' USB

3. RAP-01 to Pupo affidavit Tab 5 Table 7 - in Folder C of Defendants' USB

4. RAP-09 Tab 28 Folder "Sami Allam's Phone Extracts" - in Folder C of Defendants' USB (and not "Natives" folder in Tab 28)

5. KB-1 to Bleakman affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)

6. BJD-1 to Dales affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)

Annexure C

Annexure C - 357465-8 of 2020 - EPA v ACE - - O - 28 Sep 21 (857045, pdf)

Annexure D

Annexure D - 357475-7 of 2020 - EPA v Allam - O - 28 Sep 21 (1145112, pdf)

Amendments

12 May 2022 - MNC attributed to Environment Protection Authority v ACE Demolition & Excavation Pty Ltd incorrectly cited as [2022] NSWLEC 43. The correct citation is [2022] NSWLEC 44.

Decision last updated: 12 May 2022