Environment Protection Authority v Allam

[2021] NSWLEC 103

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Environment Protection Authority v Allam [2021] NSWLEC 103

Hearing dates:

4, 8, 24 and 25 August 2021

Date of orders:

24 September 2021

Decision date:

24 September 2021

Jurisdiction:

Class 5

Before:

Moore J

Decision:

See order at [59]

Catchwords:

EVIDENCE - mobile phone seized pursuant to search warrant - data on mobile phone protected by passcode - statutory notice requiring provision of passcode to Prosecutor - objection by Defendant to provision of passcode - objection prevents passcode being used as evidence against Defendant - Notice of Motion seeking advance ruling that evidence obtained from the mobile phone after using the passcode is inadmissible - question of whether s 212 of the Protection of the Environment Operations Act 1997 provides similar protection to information obtained from the mobile phone by using the passcode - s 212 specifically removes protection from self‑incrimination by evidence derivatively obtained by use of the passcode - use of derivatively obtained information capable of being evidence against the Defendant - preliminary ruling to reject evidence as inadmissible refused

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 122U(5)

Evidence Act 1995 (NSW), s 192A

Protection of the Environment Operations Act 1997, ss 144AA, 169A, 193 and 212

Cases Cited:

Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21

Ku-ring-gai Council v Chia (No 4) [2018] NSWLEC 75

Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39

Sorby v The Commonwealth (1983) 152 CLR 281; [1983] HCA 10

Category:

Procedural rulings

Parties:

Environment Protection Authority (Prosecutor)
Sami Allam (Defendant)

Representation:

Counsel:
Mr D Buchanan SC/Ms F Graham, barrister (Prosecutor)
Mr J Potts SC/Ms K Morris, barrister (Defendant)

Solicitors:
Environment Protection Authority (Prosecutor)
Clayton Utz (Defendant)

File Number(s):

357475, 357476 and 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 Allam

Mr Allam’s mobile phone and the accessing of messages on it

The relevant element of the Notice of Motion for Mr Allam

The relevant provisions of the POEO Act

The evidence

Representation

The hearing

The submissions for Mr Allam

The submissions for the Prosecutor

The reply submissions for Mr Allam

Consideration

Order

Annexure A

Annexure B

Judgment

Introduction

1. ACE Demolition and Excavation Pty Ltd (the Company), as its name implies, provides demolition and excavation services to developers operating in the construction industry. As part of the Company's activities, it removes and disposes of waste generated by its activities at those various construction sites. Some of the waste material generated by the Company's activities, and removed from the generating site for disposal, is material which is contaminated (including contaminated by the presence of asbestos material). Other waste generated and removed for disposal can be regarded as clean and is to be described as excavated natural material (referred to in shorthand terms as “ENM”) or virgin excavated natural material (referred to in shorthand terms as “VENM”). Some other waste is described as general solid waste (referred to in shorthand terms as “GSW”).

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). This provision is set out below. The Summonses set out the terms of each of these charges. The details of the charges are set out in Annexure A to this decision.

The charges against Mr Allam

4. The Prosecutor has laid three charges against Mr Allam for alleged breaches of s 169A of the POEO Act. The Summonses set out the terms of each of these charges. The details of the charges are also set out in Annexure A to this decision.

5. The provision creates an offence of “executive liability” for a person carrying out one of the roles in an enterprise defined in the provision and where, in the carrying out of that role, that person can be demonstrated to satisfy one or other of the relevant tests, set out in the provision, which would cause knowledge of the Company’s conduct to be imputed to the person carrying out that defined role. The terms of s 169A are also later set out.

Mr Allam’s mobile phone and the accessing of messages on it

6. The following is a short summary derived from the transcript of 24 August 2021 as to how the Prosecutor accessed and analysed messages on Mr Allam’s mobile phone:

1. Mr Allam’s mobile telephone had been seized during execution of a search warrant at the Company’s premises on 22 March 2018;

2. on 23 March 2018, an authorised officer of the Prosecutor issued Mr Allam with a notice under s 193 of the POEO Act to provide the unlock passcode for his mobile phone;

3. under compulsion of the requirement in the s 193 notice, on 26 March 2018, Mr Allam, through his solicitors, provided the EPA with the unlock passcode for his mobile phone;

4. the Prosecutor was able to access the text and WhatsApp messages on the mobile phone by having Ms Yu, an employee of KPMG acting on behalf of the Prosecutor, use the unlock passcode, provided by Mr Allam through his solicitors, to unlock the mobile phone;

5. once Ms Yu had unlocked the phone, she went through a process of applying proprietary software to the mobile phone in order to extract the messages;

6. thereafter, Ms Bleakman (another employee of KPMG) conducted or supervised a process of sorting the messages to separate out and exclude those caught by Legal Professional Privilege search terms;

7. the messages remaining were collected and then analysed by Mr Dales (an analyst with the Prosecutor);

8. Mr Dales created a spreadsheet setting out, amongst other messages, those to which objection has been taken.

The relevant element of the Notice of Motion for Mr Allam

7. By Notice of Motion filed on 16 July 2021, Mr Allam’s legal representatives applied, inter alia, for a number of advance evidentiary rulings. The advance ruling dealt with by this decision was that contained in paragraph (2)(c) of the Notice of Motion. The ruling sought is in the following terms:

Section 192A Advance Evidentiary Rulings

Pursuant to s 192A of the Evidence Act, a ruling or finding that the evidence served by the prosecutor referred to in Schedule "A" is inadmissible , or liable to exclusion on discretionary grounds, and will be rejected if tendered on the basis that:

1. …; and, or alternatively

2. …; and, or alternatively

3. the evidence is not admissible pursuant to s 212(3) of the POEO Act against Mr Sami Allam, the defendant in Proceedings No. 2020/357475-7 and 2021/78283.

8. It is to be noted that the 2021 charge listed immediately above has been withdrawn with the result that this advance ruling is only sought with respect to the three 2020 charges nominated above.

The relevant provisions of the POEO Act

9. For the purposes of this judgment, in addressing the charges laid against Mr Sami Allam, four provisions of the POEO Act are engaged. The first of those is s 144AA, the section which provides the foundation for the four charges which have been laid against the Company. This provision is in the following terms:

144AA   False or misleading information about waste

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

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

Maximum penalty—

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

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

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

Maximum penalty—

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

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

10. The second provision is s 169A of the POEO Act. This provision creates an offence of “executive liability” for an individual who is a director of a corporation if the corporation is convicted of a nominated offence against the POEO Act and where s 169A(2)(c) is satisfied with respect to the director. This provision is, relevantly, in the following terms:

169A   Liability of directors etc for offences by corporation—offences attracting executive liability generally

(1)   For the purposes of this section, an executive liability offence is an offence against any of the following provisions of this Act that is committed by a corporation—

…

(l) section 144AA (1),

…

(2)   A person commits an offence against this section if—

(a)   a corporation commits an executive liability offence, and

(b)   the person is—

(i)   a director of the corporation, or

(ii)   an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and

(c)   the person—

(i)   knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and

(ii)   fails to take all reasonable steps to prevent or stop the commission of that offence.

Maximum penalty—The maximum penalty for the executive liability offence if committed by an individual.

(3)   The prosecution bears the legal burden of proving the elements of the offence against this section.

(4)   The offence against this section can only be prosecuted by a person who can bring a prosecution for the executive liability offence.

11. The third relevant provision of the POEO Act is that pursuant to which the Prosecutor required Mr Allam to surrender his mobile phone and provide the code necessary for its data (including message records) to be accessed by the Prosecutor. The provision is in the following terms:

193   Requirement to provide information and records (authorised officers)

(1)   An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the officer requires by the notice in connection with any matter within the responsibilities and functions of the regulatory authority that appointed the officer.

(2)   In the case of authorised officers appointed by the EPA, this section is not limited to matters in respect of which the EPA is the appropriate regulatory authority.

12. The fourth relevant provision of the POEO Act is s 212, a provision which incorporates, here, relevantly, protection against self‑incrimination. It is the extent of the limitations of that protection which arise for consideration in this judgment. This provision is in the following terms:

212   Provisions relating to requirements to furnish records, information or answer questions

(1)   Warning to be given on each occasion A person is not guilty of an offence of failing to comply with a requirement under this Chapter to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.

(2)   Self-incrimination not an excuse A person is not excused from a requirement under this Chapter to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.

(3)   Information or answer not admissible if objection made However, any information furnished or answer given by a natural person in compliance with a requirement under this Chapter is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Chapter) if—

(a)   the person objected at the time to doing so on the ground that it might incriminate the person, or

(b)   the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.

(4)   Records admissible Any record furnished by a person in compliance with a requirement under this Chapter is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.

(5)   Further information Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Chapter is not inadmissible on the ground—

(a)   that the record or information had to be furnished or the answer had to be given, or

(b)   that the record or information furnished or answer given might incriminate the person.

(6)   Requirement to state name and address This section extends to a requirement under this Chapter to state a person’s name and address.

The evidence

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

Representation

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

The hearing

15. The hearing, addressing a range of preliminary matters (of which this judgment deals with but one - one of significance, however), was held over four days, with an approximately two-week break between the second and third days as a result of when there was judicial availability at the time when these preliminary determinations were set down and allocated hearing days.

16. The hearings were held, as a consequence of the COVID‑19 pandemic, using Microsoft Teams software, without the necessity for any physical attendance in the courtroom. These hearings were conducted in accordance with the Court’s COVID-19 Pandemic Arrangements Policy.

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

18. The following summaries of the submissions of the parties are a synthesis of the positions put on behalf of Mr Allam and on behalf of the Prosecutor. They have been derived from a consideration of the relevant elements of the parties’ written submissions and the transcript of the relevant portions of the oral submissions on this topic made during the course of the hearing.

The submissions for Mr Allam

19. Mr Potts submitted that s 212 of the POEO Act, in particular subs (3), was enlivened to protect Mr Allam from self‑incrimination as a result of Mr Allam’s phone being seized in the execution of a search warrant by the Prosecutor.

20. He submitted that text messages were obtained from Mr Allam’s phone after the Prosecutor had received the passcode to Mr Allam’s phone, supplied in satisfaction of a s 193 POEO Act Notice to Produce Specified Information, and the retrievals could not have happened if the passcode to Mr Allam’s phone had not been provided. Mr Potts noted that s 212(1) required a warning to be issued that it was an offence not to comply with the requirement to provide records, information, or to answer a question. He set out briefly the scope of s 212(2) and that the subject matters encompassed by the provision were records, information and answers. Mr Potts then turned to s 212(3) and identified that information or answers given as a requirement under s 212 were inadmissible in a criminal trial if the person:

1. made an objection at the time; or

2. the person was not warned that they may object to providing the information or answers on the grounds that it might be incriminating. Mr Potts submitted that s 212(3)(a), the objection provision, had been met when Mr Allam’s solicitor had sent the letter of response to the notice (Transcript 24 August 2021, page 156, lines 3 to 28).

21. Mr Potts turned to ss 212(4) and 212(5). Mr Potts noted that s 212(4) concerned records produced by a person complying with a provision under this provision were not considered inadmissible on the grounds that they might be incriminating if no objection was made.

22. He also noted that s 212(5) canvassed a broader category of further information that was obtained through compliance with a requirement under this provision. The further information identified in s 212(5) was not admissible if:

1. the information or record had to be provided or the answer had to be given; or

2. that the answer given or the record or information provided might incriminate the person.

23. The combined result of all these working together was a statutory scheme where s 212(3) provided limited protection of the privilege against self‑incrimination; s 212(4) concerned records which were not subject to an objection to production with further information resulting from provision of a record being addressed in s 212(5) (Transcript 24 August 2021, page 156, lines 26 to 43).

24. Mr Potts submitted that the information contained within the text messages fell within the purview of s 212(3). Mr Potts contended that s 212(3) was not limited by the language of s 212(2). He submitted that the protection against self‑incrimination was invoked through the satisfaction of s 212(3)(a) by the objection provided by Mr Allam’s solicitors in response to the notice. He proposed that a differential application of ss 212(3) and 212(5) arose, reiterating that subs (3) was concerned with answers, subs (4) dealt with records, information, or answers and subs (5) introduced a further concept related to obtaining of further information.

25. Mr Potts noted that the position for Mr Allam was that compliance with the s 193 notice was not the provision of the phone, but the production of Mr Allam’s phone’s passcode. The phone was seized through the execution of the search warrant.

26. Therefore, Mr Potts submitted, s 212(4) did not apply because the phone and its electronic data were not a record provided through compliance with that element of the provision. The contest between the parties fell into whether ss 212(3) or 212(5) was the appropriate provision applying to the text message data; the former position being that advanced for Mr Allam and the latter by the Prosecution. Mr Potts conceded that Parliament could limit the privilege against self‑incrimination but submitted that this would have needed to have been done in clear, unambiguous terms (Transcript 24 August 2021, page 157, lines 6 to 20).

27. Mr Potts reaffirmed his submission that s 212(3) was the appropriate provision that would encompass the text messages obtained from Mr Allam’s phone. Mr Potts contended that the passcode to Mr Allam’s phone, in compliance with the notice given pursuant to s 193 of the POEO Act, extended to the text messages that would be able to be retrieved upon unlocking the phone. This was the case even if the passcode itself was the answer for the purposes of s 212(3). Mr Potts submitted that s 212(3) was not just concerned with the answer given but the provision applied to any information furnished through the answer given. The text messages were information provided; the text messages were not additional information, or consequential discovery, found by chance after the passcode was provided. This situation would have arisen if the Prosecutor had seized a notebook with notes written in a code known only to Mr Allam. If the Prosecutor compelled a translated version to be provided in response, that information would fall within the scope of s 212(2). The result would be the same if the Prosecutor were to request the key or table to be provided that would allow the Prosecutor to translate the note itself. In either circumstance, the Prosecutor would have access to the information in the entire notebook. The same result arose when Mr Allam provided the passcode to his phone; the Prosecutor had access to the data held on the phone and the passcode was the only information the Prosecutor needed to access the stored text messages.

23. Had the passcode not been provided the Prosecutor would not have been able to access Mr Allam’s text messages, therefore the text messages were information provided within the scope of s 212(3). The result is that Mr Allam was compelled to provide information to the provision of which he objected, which enlivened the protection against self‑incrimination contained within s 212(3) (Transcript 24 August 2021, page 157, line 22 to page 158, line 15).

24. Mr Potts was not aware of any previous authority that had dealt with passcode‑protected phones and their stored data. The decision handed down by Robson J, as provided by the Prosecution, concerned s 212(5) and did not apply in this situation. Therefore, there was novelty in this decision relating to passcode‑protected phones, their data, and how s 212(3) was to be applied (Transcript 24 August 2021, page 158, lines 26 to 36).

The submissions for the Prosecutor

30. The Prosecutor conceded that research had not “uncovered an analogous case in terms of passcode protected data”. It was submitted, however, that common law lawyers were in very familiar territory with the concepts contained in s 212 of the POEO Act. The Prosecutor identified two consequences arising from the privilege against self‑incrimination; the first was the immunity against the material the subject of the privilege being used against the privilege holder, whilst the second was derivative‑use immunity - the latter immunity being for the material that could be derived from material provided by the privilege holder. The Prosecutor submitted that it was a decision for legislatures whether to abrogate the privilege against self‑incrimination, examples of which were listed in the Prosecutor’s written submissions.

31. The Prosecutor submitted that Parliament, by the passage of s 212, was fully cognisant of the restrictions that were being placed upon the privilege against self‑incrimination but intervened to override it as provided for in the provision. The Prosecutor submitted that the decision by Robson J in Ku-ring-gai Council v Chia (No 4) [2018] NSWLEC 75 (Chia (No 4)) was informative in understanding the correct approach to be adopted, as was the High Court’s decision in Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39 (Lee v NSW Crime Commission).

32. The Prosecutor submitted that s 212(2) limited the use of the privilege against self‑incrimination when a person was ordered to provide information, but the effect was constrained by s 212(3), which allowed the privilege in criminal proceedings and only objection was made to the provision of information. The Prosecutor noted that s 212(4) did not allow privilege against self‑incrimination regarding records provided in satisfaction of a compulsory requirement to do so and no objection was made.

33. The Prosecutor submitted that s 212(5) did not grant immunity for derivative use regarding answers or information provided. Referring to the words “further information provided” in s 212(5), the Prosecutor submitted that information that was one step removed from the information provided would not attract immunity against self‑incrimination. In other words, only the information directly required to be provided could be shielded by privilege against self‑incrimination.

34. The Prosecutor then proposed that the description of “derivative evidence”, given by Murphy J in Sorby v The Commonwealth (1983) 152 CLR 281; [1983] HCA 10, at 312, was of assistance - where his Honour explained that “derivative evidence” was “evidence obtained by using the testimony as a basis of investigation” (Prosecutor’s written submissions at paragraph 18).

35. In Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21 (Hamilton v Oades), Mason CJ said, at 496, derivative evidence was “… evidence which is obtained from other sources in consequence of answers given by the witness in his examination”. The Prosecutor submitted it followed from these decisions and the use of the words “testimony” and “examination” that the messages and information obtained from Mr Allam’s phone were derivative in nature. This was because Mr Allam’s providing of the passcode to his phone, as an obligation to satisfy the Prosecutor’s notice, had enabled Mr Yu to unlock Mr Allam’s phone. The passcode was the information that was the directed answer given by Mr Allam.

36. All other information that was now accessible was derivative because “… quite clearly what Mr Yu was doing was obtaining information further than or further from or derived from the information that Mr Allam provided Mr Pupo”. (Transcript 24 August 2021, page 16, lines 23 to 25). The Prosecutor submitted that, through the application of the “ordinary and actual” meaning of the language in s 212 of the POEO Act, the information stored on the phone was derivative evidence.

37. The Prosecutor again referred to Lee v NSW Crime Commission. This case had concerned compulsory examinations under s 12 of the Criminal Assets Recovery Act 1990 (the Criminal Assets Recovery Act) and s 13A of the Criminal Assets Recovery Act which related to the privilege against self‑incrimination. The Prosecutor submitted that the sections in the Criminal Assets Recovery Act were “strikingly similar” to s 212 of the POEO Act and they exhibited “no relevant difference”. The Prosecutor explained what should be regarded as the similarities of the relevant sections of the two Acts and thus the relevant applicability of the decision in Lee v NSW Crime Commission to the present circumstances.

38. The Prosecutor submitted that the structure of the two enactments was to similar effect (even if set out in differing language). The Prosecutor proposed that s 13A(2) of the Criminal Assets Recovery Act was equivalent to s 212(3) of the POEO Act and, further, s 13A(3) of the Criminal Assets Recovery Act mirrored the concepts and language contained in s 212(5) of the POEO Act regarding further information. The Prosecutor reiterated his submission that there was “no relevant difference” between the provisions of the two Acts in relation to further information and the admissibility of information obtained as a result of answers or documents provided; the further information obtained was not inadmissible on the grounds it might be incriminating. Citing French CJ’s analysis in Lee v NSW Crime Commission (where his Honour stated that answers obtained from compulsory examination under s 12 of the Criminal Assets Recovery Act had the privilege against self‑incrimination abrogated by s 13A of that Act), the Prosecutor put that this operated to the same effect as did s 212(2) of the POEO Act. The Prosecutor submitted that the issue here being considered was the same.

39. The Prosecutor relied upon Crennan J’s assessment of s 13A(3) of the Criminal Assets Recovery Act (Lee v NSW Crimes Commission at [137]), where her Honour indicated that the manner in which the evidence there obtained would not render derivative evidence inadmissible.

40. The Prosecutor submitted (Transcript 24 August 2021, page 161, lines 16 to 21):

It's axiomatic that something which is authorised by legislation cannot be regarded as unfair or improper by reason of the very matter authorised by Parliament, and so discretions to exclude material because of the circumstances in which they were obtained or the use of it would be unfair and improper don't have any scope to operate where that which is said to be unclear or improper is the result of the operation of legislation.

41. The Prosecutor submitted that immunity against derivative use was not a defence available to a person who supplied information in Mr Allam's position. This, the Prosecutor proposed, was because the language of s 212(5) was clear in its intent.

42. The Prosecutor turned next to the decision of Robson J in Chia (No 4) in support of this position. Robson J had noted that Parliament could restrict or overcome a common law immunity against self‑incrimination if Parliament showed clear intent or clearly expressed its will to restrict the immunity. His Honour found such an intent and clear expression in the language of s 122U(5) of the Environmental Planning and Assessment Act 1979 (the EPA Act), and the application to exclude the impugned evidence was dismissed. The Prosecutor submitted, therefore, as s 212 of the POEO Act was in identical terms to s 122U, the evidence obtained after unlocking Mr Allam’s phone could not attract immunity against self‑incrimination because Parliament had clearly intended to restrict the immunity against self‑incrimination for the use of further information.

43. The Prosecutor conceded that s 212(3) granted Mr Allam immunity against the passcode being used against him, but s 212(5) did not allow that immunity to be continued for the information that was extracted from the phone, as it was further information accessible to Mr Yu by using the passcode provided to him to unlock the phone, thus giving him access to other information on the phone. This was information derived from the use of the passcode.

44. The Prosecutor reiterated that the passcode itself attracted privilege against self‑incrimination under s 212(3). However, the information that was obtained subsequent to provision of the passcode was clearly further information provided for by s 212(5) of the POEO Act and did not attract the privilege against self‑incrimination as expressly provided for by s 212(3) in the limited terms of that provision. This proposition was supported by the reasoning in both Lee v NSW Crimes Commission and Chia (No 4).

45. The Prosecutor concluded by submitting that Mr Allam’s position was misconceived because he had not provided the text messages in satisfaction of the notice. What was provided as the answer to the notice was the passcode. This clearly placed the text messages within the scope of s 212(5) of the POEO Act, thus rendering them admissible.

The reply submissions for Mr Allam

46. Mr Potts, in reply, addressed the Prosecutor’s reliance upon the decision in Lee v NSW Crime Commission. Mr Potts drew the Court’s attention to the differences that Mr Potts submitted were exhibited between the language of s 13A of the Criminal Assets Recovery Act, as considered in Lee v NSW Crime Commission, and the language contained in s 212 of the POEO Act. Mr Potts focused on page 285 of the decision in Lee v NSW Crime Commission, where Gageler and Keane JJ reproduced s 13A of the Criminal Assets Recovery Act. In particular, Mr Potts highlighted the use of the words, “or other thing”, that were in addition to an answer given or a document produced under s 13A(1). Mr Potts proposed that s 13A(2), the right against self‑incrimination, was linked to an answer or a document provided; Mr Potts highlighted that this provision was silent regarding a “thing” produced. Mr Potts further proposed that s 13A(3) provided that further information obtained that resulted from the provision of answers or documents was not inadmissible. Mr Potts compared the provisions in s 13A of the Criminal Assets Recovery Act to that of s 212 of the POEO Act and submitted that they used different language. Section 212(2) was concerned with records, answers, or information provided; s 212(3) was limited to answers provided; s 212(4) with records provided; and s 212(5) concerned “the statutory concept of further information”. Mr Potts submitted that close attention was needed regarding the language differences of the two instruments and, therefore, the discussion of s 13A in Lee v NSW Crime Commission was of no assistance in this decision (Transcript 24 August 2021, page 166, line 37 to page 167, line 17).

47. Mr Potts then turned his, and the Court’s, attention to the Prosecution’s propositions taken from Chia (No 4). Mr Potts submitted that, like Lee v NSW Crime Commission, Chia (No 4) would not assist the Court decide the matter that was before it, because Robson J had not determined “any question of principle or construction” that would aid in the interpretation of s 212 (Transcript 24 August 2021, page 167, lines 17 to 25).

Consideration

48. In Lee v NSW Crime Commission, the plurality of the High Court made it expressly clear that a parliament can, by specific enactment, abrogate common law rights against self‑incrimination. The proposition was encapsulated in the decision of French CJ, at [3], where his Honour said:

When the text, context and purpose of a statute permits a choice to be made, the courts will choose that interpretation which avoids or minimises the adverse impact of the statute upon common law rights and freedoms. However, subject to constitutional limits, where a parliament has decided to enact a law which abrogates such a right or freedom, its decision must be respected.

49. That principle, now in question, is as to whether s 212 of the POEO Act constitutes such an express determination by the New South Wales Parliament to abrogate, here, Mr Allam's protection against self‑incrimination or not.

50. It is to be observed that the language used in the provisions of the Criminal Assets Recovery Act, upon which the Prosecutor relied, is in significantly different terms to the provision that is under consideration in these proceedings. Similarly, the earlier High Court decision in Hamilton v Oades to the same effect also involved language of a statutory provision somewhat dissimilar to that of s 212 of the POEO Act (although the broad principle of the capacity of a parliament to abrogate such protections was also acknowledged).

51. Although that broad foundational principle is beyond question, I have found no assistance in Lee v NSW Crime Commission or Hamilton v Oades, beyond the affirmation of the principle that a parliament may abrogate the relevant common law protections, for the purposes of considering whether or not the language of s 212 of the POEO Act does, after examination of the text, context and purpose of this provision, lead to the conclusion that the New South Wales Parliament merely provided limited and specific protection for information provided in response to s 212(3) in circumstances where an objection is made to the provision of information and, as a consequence of that provision, the obtaining of further information (as provided for in s 212(5)) is excluded from use of incriminating derivative evidence as would otherwise be the common law position.

52. As earlier noted, the Prosecutor relied on the interpretation of s 122U of the EPA Act (as applying at the relevant date) adopted by Robson J in Chia (No 4). Although his Honour's conviction of Mr Chia was overturned on appeal (Chia v Ku-ring-gai Council [2021] NSWCCA 189), his decision on this preliminary point of interpretation was not disturbed by the Court of Criminal Appeal.

53. Although the factual circumstances with which Robson J was dealing differed from those arising in this instance (in that the information which was protected in his Honour's instance were answers given during an interview held under compulsion) and that which his Honour ruled was admissible pursuant to the equivalent of s 212(5) of the POEO Act was additional information harvested in reliance on those answers, nonetheless, his Honour’s reasoning is, for present purposes, entirely applicable here.

54. To understand the potential contextual relevance of his Honour's reasoning, it is first appropriate to set out the terms of the relevant provision in the EPA Act as at 5 February 2015 (the relevant date in the Chia proceedings). It was in the following terms:

122U   Provisions relating to requirements to furnish records, information or answer questions

(1)   Warning to be given on each occasion A person is not guilty of an offence of failing to comply with a requirement under this Division to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.

(2)   Self-incrimination not an excuse A person is not excused from a requirement under this Division to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.

(3)   Information or answer not admissible if objection made However, any information furnished or answer given by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Division) if:

(a)   the person objected at the time to doing so on the ground that it might incriminate the person, or

(b)   the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.

(4)   Records admissible Any record furnished by a person in compliance with a requirement under this Division is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.

(5)   Further information Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Division is not inadmissible on the ground:

(a)   that the record or information had to be furnished or the answer had to be given, or

(b)   that the record or information furnished or answer given might incriminate the person.

55. It is next appropriate to set out the terms of his Honour's reasoning and conclusion, presently here relevant for consideration. The relevant elements (between [100] and [106]) from his Honour's decision in Chia (No 4), addressing the issues of principle here involved, are set out below:

100 Section 122U(3) makes it clear what cannot be done with a defendant’s compulsory interview. The information gathered therein is inadmissible in a criminal trial. However, any further information gathered as a result of the receipt of the information is not for that reason rendered inadmissible (s 122U(5)). That is the clear meaning of the text and its necessary intendment. Any other construction of the provision would necessitate a council adopting a hybrid personality and lead to intolerable ambiguity in the operation of the Act. Such a conclusion cannot have been intended and I find it is not reasonably open on the language of the provision.

101   …

102   In those circumstances, it is unnecessary to consider whether the prosecutor’s actions offend the common law principle. However, for completeness, I add that I do not consider that the present case constitutes a “fundamental departure” from the ordinary trial process as considered in Lee v The Queen or an upsetting of the balance between prosecutor and defendant in the sense considered by Fullerton J in Seller.

103   …

104   …

105 The EPA Act empowers councils to conduct compulsory interviews even against the objection of the interviewee that the answers given may be self-incriminating. Information obtained, whilst not admissible, may then be used for an investigative purpose. That is a departure from the ordinary common law position, but it is manifest in the clear words of the legislature and represents a balance struck between the competing interests of the public and a person accused of an offence. The interaction of those competing policy arguments is shown starkly by the provisions of s 122U(3) and s 122U(5).

106   It is not for the Court to cavil with the balance struck by the legislature between competing policy arguments. …

56. As can be seen from s 122U of the EPA Act, it is in relevantly the same terms as s 212 of the POEO Act. As a consequence, his Honour’s reasoning in Chia (No 4) provides significant assistance in understanding how ss 212(3) and 212(5) of the POEO Act operate together.

57. Further, it is to be observed that, although the fact that his Honour's reasoning was applied to a provision under a different enactment than that which I am here considering, questions of comity and the necessity for me to conclude that Robson J was “plainly wrong” in his interpretation of the then s 122U of the EPA Act does arise, given the relevantly identical language of the two statutory provisions.

56. I am satisfied that the approach taken in Chia (No 4), as set out above, is appropriate to be adopted for application to interpretation of s 212 of the POEO Act. I have reached this conclusion for the reasons outlined by his Honour in his interpretation of the provision with which he was engaged as extracted above.

Order

59. It follows that the order of the Court concerning the use of data extracted by the Prosecutor from Mr Allam's mobile phone by use of the passcode provided by Mr Allam under compulsion by virtue of s 193 of the POEO Act must be:

1. The order sought by (2)(c) of the Defendant's Notice of Motion of 16 July 2021 is refused.

**********

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)

Amendments

24 September 2021 - Date of Orders and Date of Decision amended to 24 September 2021, when the judgment was, in fact, handed down.

29 September 2021 - Errata corrected as follows and pursuant to the Slip Rule.

• File number amended to include all three file numbers, being 357475 of 2020, 357476 of 2020 and 357477 of 2020.

• At [14], The initial of Ms Graham, junior counsel for the Environment Protection Authority, amended from "K" to "F".

• File numbers relating to the charges in the first column in Annexure A amended to align with the correct charge.

Decision last updated: 29 September 2021