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

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7
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 orders at [385]

Catchwords:
EVIDENCE - Prosecutor serves tendency notice on Defendant pursuant to s 97 of the Evidence Act 1995 - tendency said to be based on text messages obtained from Defendant’s mobile phone - text messages arranged by Prosecutor into 16 message conversations - message conversations divided by Prosecutor into two groups - first group said by Prosecutor to evidence dishonesty by Defendant - second group said by Prosecutor to lead to inference of dishonesty by the Defendant - Defendant seeks rejection of tendency as being pleaded at too great a level of generality - tendency not pleaded at too great a level of generality - Defendant seeks exclusion of groups of message conversations as not demonstrating pleaded tendency - some (but not all) groups of message conversations proposed to be relied upon to demonstrate dishonesty ruled admissible for tendency purposes - all groups of message conversations said to infer dishonesty ruled inadmissible for tendency purposes

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Code Act 1924 (Tasmania)
Copyright Act 1968 (Cwth)
Evidence Act 1995 (NSW)
Protection of the Environment Operations Act 1997
Evidence Amendment (Tendency and Coincidence) Act 2020

Cases Cited:
Adam v R (2014) 246 A Crim R 232; [2014] NSWCCA 265
Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57
Anthony v Morton [2018] NSWSC 1884
Boughey v The Queen (1986) 161 CLR 10; [1986] HCA 29
El‑Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10
Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 44
Environment Protection Authority v ACE Demolition & Excavation Pty Ltd; Allam [2022] NSWLEC 45
Environment Protection Authority v Allam [2021] NSWLEC 103
Galea v Farrugia [2013] NSWCA 164
Hughes The Queen (2017) CLR 338; [2017] HCA 20
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Bauer (2018) 266 CLR 56; [2018] HCA 40
R v Droudis (No. 13) [2016] NSWSC 1350
R v Pullen [2018] NSWCCA 264
R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88
RH v R [2014] NSWCCA 71
Richards v Macquarie Bank (No 2) (2012) 301 ALR 494; [2012] FCA 1403
Simpson v The Queen (1998) 194 CLR 228; [1998] HCA 46
TB v R [2019] NSWCCA 224

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

The charges against the Company

Mr Sami Allam's role with the Company

The charges against Sami

The Prosecutor’s tendency notice

The Prosecutor seeks a tendency ruling

The Notice of Motion for Sami

The related interlocutory decisions

Representation

The hearing

The discontinued charge against Sami

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

The retrieved messages are not excluded

The matters to be determined

The evidence

The relevant statutory provisions

Introduction
The POEO Act provisions
The Evidence Act
The “knows, or ought reasonably know” provisions

The other relevant Company personnel

Introduction
Bachar's role with the Company
Kassem’s role with the Company
Ali Reza’s role with the Company

The Statement of Agreed Facts

The “Prosecutor’s Further Revised Draft Statement of Facts”

Sami’s messaging

Introduction
The 16 groups of text messages
Introduction
The extent of Sami's text messaging
Sami's WhatsApp messaging

The submissions

The structure for setting out the submissions

The Prosecutor’s submissions

Introduction
The relationship between the messages and the charges against Sami
Sami’s record of interview

The submissions for Sami

Generality and the test of “substantive”
The terms of the proposed tendency
The limited number of messages relied upon by the Prosecutor
The time period of the messages relied upon
The difference between the charged conduct and the “asserted tendency”
The consequence of rejection of the “inferred dishonesty” groups of messages
The “dishonesty” groups of messages
The question of prejudice
The test in s 101 of the Evidence Act

The Prosecutor’s reply submissions

Introduction
On the issue of the small numbers of messages relied upon by the Prosecutor
The timing of the groups of messages
On the issue of generality versus specificity of the tendency
No suggestion of general dishonesty
Unfair prejudice

Consideration

Introduction
The generality of the “asserted tendency”
The proportion of Sami's messaging relied upon by the Prosecutor
General
Sami’s record of interview
Conclusion

Consideration of the “dishonesty” text conversations
Introduction
Item 1
Item 3
Item 4
Item 6
Item 9
Item 10
Item 12
Item 14
Item 15

Consideration of the “dishonesty inferred” text conversations
Introduction
Item 2
Item 5
Item 7
Item 8
Item 11
Item 13
Item 16

Conclusion with respect to the Exhibit A messages
The direct dishonesty items
The inferred dishonesty items

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

Prejudice

Probative value v danger of unfair prejudice
The ss 135(a) and 137 tests

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

Introduction
The Prosecutor’s submissions
The submissions for Sami on non‑tendency use of the messages
Consideration

Conclusions

Directions

Annexure A

Annexure B

Judgment

Introduction

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

The charges against the Company

The Prosecutor has laid four charges against the Company for alleged breaches of the Protection of the Environment Operations Act 1997 (the POEO Act). The Summonses set out the terms of each of these charges. A summary of the charges is set out in Annexure A to this decision (the full terms of the Summonses do not require reproduction - the summary is sufficient).
To provide further context in understanding the nature of the Company’s activities and the general waste disposal process with which it was involved, it is convenient to set out an extract from the Prosecutor’s opening that gives, in an uncontroversial fashion as I understood it, an outline of general matters relevant to these charges (Transcript 4 August 2021, page 12, line 39 to page 13, line 33):

PROSECUTOR: …, the waste concerned in each case came from one of two premises. The development concerned in each case was, firstly a development site at 40 to 50 Arncliffe Street, Wolli Creek, the developer being Westbourne Constructions Pty Limited, and a development site at 105 to 115 Portman Street, Zetland, the developer being Top Pacific Constructions Pty Limited. In each case the developer had contracted with ACE for it to carry out substantial excavation works and to remove the waste generated by that excavation. In each case, the defendant Sami Allam had negotiated the contract on behalf of the corporate defendant.
The evidence will be that ACE hired truck drivers to cart the waste from each site to a waste facility selected by ACE. The defendant Allam negotiated with the various waste facilities for waste to be disposed of at those facilities from the different development sites at which ACE operated.
Under part 3 of the Protection of the Environment Operations (Waste) Regulation 2014, the occupiers of waste facilities were required, amongst other things, to record certain information in relation to each delivery of waste or other material received at the facility, including the amount of any waste delivered, its waste type, such as whether it was contaminated by asbestos, its waste stream, such as construction and demolition waste, the date and time the delivery was made, and the registration number of the vehicle used to make the delivery. The way waste facilities typically did this was by electronically recording the data, using weighbridges over which the trucks passed to enter and leave the facilities. The facility operators generated waste disposal dockets which included much of this data. In practice, a copy of the weighbridge disposal docket would either or both be supplied to the truck driver bringing the waste to the facility or the entity disposing of it and/or providing to the entity - in this case, ACE - disposing of the waste at the time of providing the waste facility’s invoice to that entity.
In the case of both development sites, Wolli Creek and Zetland, ACE was contractually obliged to account to the developer for the removal of the waste concerned. The developer needed to prove to the local council which issued the development consent for the site that all waste generated by the development was disposed of lawfully. A typical way this could be done was by ACE providing the developer or its agent with originals or copies of the weighbridge disposal dockets ACE had received for disposing of the waste from that developer’s site. Those weighbridge disposal dockets would then correspond with waste classification certificates or other reports generated in relation to a site to indicate the volume and types of waste to be excavated and disposed of from the site. Sometimes ACE would also provide spreadsheets or summaries of the occasions of waste disposal to particular waste facilities. In addition, waste facilities sometimes provided summaries of their records of the occasions of ACE’s trucks disposing of waste to their facilities, which they would provide to ACE, which ACE could then provide to the developer clients or their agent.

Mr Sami Allam's role with the Company

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

The charges against Sami

The Prosecutor has laid three charges against Sami for alleged breaches of the POEO Act. The charges against Sami are ones characterised as executive liability charges, that is, charges where conduct charged against the Company is statutorily imputed to Sami as its director. The Summonses set out the terms of each of these charges. The summary of the charges set out in Annexure A to this decision - in conjunction with a reading of (the later set out) s 169A of the POEO Act - is also sufficient to provide a proper contextual understanding of the charges against Sami.
At the conclusion of the Prosecutor’s reply submissions on 5 August 2021, he summarised the three aspects of the case mounted against Sami on each of the charges. It is convenient, by way of general introduction, to quote that aspect of the Prosecutor's submissions as an introductory outline of the framework of the offences alleged by the prosecution against Sami (Transcript 5 August 2021, page 117, lines 7 to 18):

The first aspect of the case against Mr Allam on the three charge he faces is the conduct element comprising the conduct of a company. The second aspect is his constructive knowledge, what he ought reasonably to have known about the conduct of the company a the conduct of him in inculcating a culture of supplying information about waste to outsiders which is false and misleading is the sort of thing which would necessarily alert him to the fact that where information is being supplied, as it necessarily must be, by employees about waste to outsiders to account for it. There is a risk that it[‘s going to be false or misleading. That is our case. That is the second aspect of our case against the defendant, Allam, which we say this tendency evidence has a tendency to prove. The third element is the element of failing to take reasonable steps to prevent the commission of the offence.

The Prosecutor’s tendency notice

The Prosecutor has served a notice on Sami pursuant to s 97(1)(a) of the Evidence Act 1995 (the Evidence Act) of the Prosecutor’s intention to rely on 16 groups of text messages to or from Sami as establishing a tendency upon which the Prosecutor proposed to rely in support of the executive liability charges laid against Sami.
Following the setting out of the information described above, the notice given to Sami then set out the terms of the tendency said to arise as being demonstrated by the 16 groups of text messages. That tendency was set out in paragraph 5 of the notice as being that:

… the Defendant had a tendency to act in a particular way, namely a tendency:
• to promote a culture, and/or a practice and/or a system of work in the company which involved dishonesty and deception when supplying information to other people in the course of dealing with waste.

Sami's legal representatives do not contest that the requirements of s 97(1)(a) of the Evidence Act for the giving of notice were satisfied by the tendency notice served on Sami and becoming the subject of these proceedings (Transcript 4 August 2021, page 26, lines 49 and 50).

The Prosecutor seeks a tendency ruling

On 16 July 2021, the Prosecutor filed a Notice of Motion seeking a ruling concerning the proposed tendency evidence. The order sought by the Prosecutor was that:

… the Prosecutor be granted a ruling pursuant to s 97 of the Evidence Act 1995 that evidence of a tendency of the Defendant, as set out in the notice of intention to adduce tendency evidence which is behind Tab 2 of Exhibit EES‑1 to the Affidavit of Elizabeth Emily Spain dated 15 July 2021, is admissible.

The basis upon which the Prosecutor proposed that each group of text messages was said to illustrate the “asserted tendency” was set out in that notice. Separate explanations were provided with respect to each of the 16 groups of text messages.
It will be necessary, later, to set out the detail of the messages in 16 groups of text messages and, with respect to each of the groups, relevant details of what the Prosecutor claims is to be drawn from that group. However, for these introductory purposes, the above is a sufficient explanation to understand the framework of the notice given to Sami for the purposes of s 97(1)(a) of the Evidence Act.

The Notice of Motion for Sami

On 16 July 2021, a Notice of Motion was also filed for, relevantly, Sami seeking to have the material upon which the Prosecutor proposed to rely for the “asserted tendency” (and also for non‑tendency purposes) rejected. The relevant elements of the Notice of Motion filed on Sami's behalf are in the following terms:

Section 192A Advance Evidentiary Rulings
2 Pursuant to s 192A of the Evidence Act, a ruling or finding that the evidence served by the prosecutor referred to in Schedule “A” is inadmissible, or liable to exclusion on discretionary grounds, and will be rejected if tendered on the basis that:
a) the evidence is tendency evidence under Part 3.6 of the Evidence Act and does not have significant probative value, or its probative value does not significantly outweigh the prejudicial effect on the defendants; and, or alternatively
b) the evidence should not be admitted because it is unfairly prejudicial; would cause or result in undue waste of time; or its probative value is outweighed by the danger of unfair prejudice to the defendants under ss 135 and 137 of the Evidence Act;

The related interlocutory decisions

As part of the suite of interlocutory issues arising with respect to the prosecutions for the charges set out in Annexure A, one related decision has already been given by me. This decision addressed a challenge to the validity of the obtaining by the Prosecutor of a large number of text messages and WhatsApp conversations retrieved from Sami's mobile phone, a phone which had been seized from him by the Prosecutor (there being no challenge to the seizure, merely to the validity of the obtaining of the messages retrieved from it. On 24 September 2021, I rejected the challenge to the obtaining of the messages by the Prosecutor (Environment Protection Authority v Allam [2021] NSWLEC 103 (Allam No 1)).
Two further interlocutory decisions have been given simultaneously with this decision. These decisions are Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 44 (the Company decision) and Environment Protection Authority v ACE Demolition & Excavation Pty Ltd; Allam [2022] NSWLEC 45 (the extra messages decision).
A reading of all four of these decisions will assist in understanding the nature of the present status of the proceedings (proceedings which are scheduled to proceed to trial in late July 2022).

Representation

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

The hearing

The hearings dealing with all interlocutory matters were held over six days, with an approximately two-week break between the second and third days and a further break of approximately one month between the fourth and fifth days as a result of when there was judicial availability at the time when these preliminary determinations were set down and allocated hearing days.

The hearings were conducted remotely in accordance with the Court’s then applicable COVID‑19 Pandemic Arrangements Policy.

The discontinued charge against Sami

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

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

The next matter arising on the first day of the hearing which warrants being recorded is the outlining by the Prosecutor of the nature of the preliminary issues requiring to be addressed in this phase of these interlocutory proceedings. The Prosecutor’s summary of those matters was (Transcript 4 August 2021, page 3, line 37 to page 4, line 31):

PROSECUTOR: Firstly, the prosecutor's tendency evidence application in proceedings 2020/357475 to 477 against Mr Allam in relation to certain text messages.
…
PROSECUTOR: Secondly, if the text messages are admissible as tendency evidence, then determination of the defendants' application to exclude them. This is prayer to A in the defendants' notice of motion, and subject to my friend and to your Honour, realistically the competing applications in the first and the second hearings should be dealt with together.
…
PROSECUTOR: If the text messages - thirdly, if the text messages are inadmissible for a tendency purposes, then determination of the defendants' application to exclude them. This, it might be noted, will necessitate consideration of the prosecutor's asserted non‑tendency purpose for the text messages' evidence.
…
PROSECUTOR: This is the defendants' notice of motion prayer 2B.
…
PROSECUTOR: Fourthly, the defendants' application to exclude evidence of text messages on the ground that they were obtained in breach of s 212(3) Protection of the Environment Operations Act.
…
PROSECUTOR: That is the defendants' notice of motion prayer 2C.
…
PROSECUTOR: Then finally, the prosecutor's tendency evidence application in proceedings 2020/357465 through to 468 against Ace Demolition & Excavation Pty Ltd.

The retrieved messages are not excluded

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

The matters to be determined

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

The evidence

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

the division of the text messages into 16 groups, with these groups, in turn, being allocated into two categories relied upon by the Prosecutor for these preliminary proceedings. No group of messages was included in both categories;

tagging of the first of those categories with the appellation “Provide false/misleading info (Dishonesty)” (repeated simply as “Dishonesty” for subsequent items in this category); and

tagging of the second of those categories with the appellation “Fail to direct to be honest (Dishonesty inferred)” (repeated simply as “Dishonesty inferred” for subsequent items in this category).

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

The relevant statutory provisions

Introduction

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

The POEO Act provisions

The first relevant provision of the POEO Act is that giving rise to the charges against the Company. That provision is s 144AA, the relevant elements of which are in the following terms:

144AA   False or misleading information about waste
(1)   A person who supplies information about waste to another person in the course of dealing with the waste, being information that is false or misleading in a material respect, is guilty of an offence.
It is a defence in any proceedings against a person for an offence under this subsection if the person establishes that the person took all reasonable steps to ensure that the information was not false or misleading in a material respect.
Maximum penalty—
(a)   in the case of a corporation—$250,000, or
(b)   in the case of an individual—$120,000.

(2)   A person who supplies information about waste to another person in the course of dealing with the waste, being information that the person knows is false or misleading in a material respect, is guilty of an offence.
Maximum penalty—
(a)   in the case of a corporation—$500,000, or
(b)   in the case of an individual—$240,000 or imprisonment for 18 months, or both.

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

The second relevant provision of the POEO Act is that which provides the basis for the charges laid against Sami arising from his roles with the Company. This provision, s 169A, creates an offence of executive liability for a person carrying out one of the roles defined in the provision and where that person can be demonstrated to satisfy one of the tests which would cause knowledge of the enterprise’s conduct to be imputed to that person. Relevantly for present purposes, s 169A is in the following terms:

169A   Liability of directors etc for offences by corporation—offences attracting executive liability generally
(1)   For the purposes of this section, an executive liability offence is an offence against any of the following provisions of this Act that is committed by a corporation—
…
(l)   section 144AA (1),
…

(2)   A person commits an offence against this section if—
(a)   a corporation commits an executive liability offence, and
(b)   the person is—
(i)   a director of the corporation, or
(ii)   an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and

(c)   the person—
(i)   knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and
(ii)   fails to take all reasonable steps to prevent or stop the commission of that offence.

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

(3) The prosecution bears the legal burden of proving the elements of the offence against this section.
(4) The offence against this section can only be prosecuted by a person who can bring a prosecution for the executive liability offence.

The Evidence Act

The Evidence Act permits, through s 192A, the making of advance evidentiary rulings concerning evidence which might, if sought to be relied upon at trial, result in contests as to admissibility and, hence, delay in the speedy conduct of a trial. The provision is in the following terms:

192A   Advance rulings and findings
Where a question arises in any proceedings, being a question about—
(a)   the admissibility or use of evidence proposed to be adduced, or
(b)   the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or
(c)   the giving of leave, permission or direction under section 192,
the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

In these proceedings, both the Prosecutor and Sami’s legal representatives seek advance evidentiary rulings concerning the text messages. As might be expected, in general terms, the Prosecutor seeks that they be ruled as admissible as demonstrative of a tendency asserted to be held by Sami or, if not so admissible, are admissible for non‑tendency purposes.
The rulings sought on Sami’s behalf were earlier set out in the Notice of Motion elements at [17].
Five further provisions of the Evidence Act require consideration in these proceedings. The first further provision is s 97(1), the provision dealing with tendency evidence. It is applicable in both criminal and civil proceedings. This provision is in the following terms:

97   The tendency rule
(1)   Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)   the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and
(b)   the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

The second further provision requiring consideration in these proceedings is s 101, a provision relating to potential tendency evidence in criminal proceedings. Additional protection is available to a defendant when a prosecutor seeks a ruling that would permit it to rely on an “asserted tendency”. The relevant elements of this provision are:

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.

The third further provision requiring consideration in these proceedings is s 135, a provision in the following terms:

135   General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a)   be unfairly prejudicial to a party, or
(b)   be misleading or confusing, or
(c)   cause or result in undue waste of time.

The fourth further provision requiring consideration in these proceedings is s136, a provision in the following terms:

136   General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might—
(a)   be unfairly prejudicial to a party, or
(b)   be misleading or confusing.

The fifth provision requiring consideration in these proceedings is s 137, a provision in the following terms:

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

The final relevant matter is the definition of “probative value” in the Dictionary to the Evidence Act. The definition is in the following terms:

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

The “knows, or ought reasonably know” provisions

The Prosecutor relies on judicial consideration of the terms in other criminal and civil legislation where the concept of “knows, or ought reasonably know” provisions exist as providing illustrative understanding as to how the attribution of constructive knowledge to Sami by virtue of his role in the Company arises (on the Prosecutor’s case).
It is unnecessary to set out the details of these provisions, provisions contained in the following legislation:

the Criminal Code Act 1924 (Tasmania);

the Crimes Act 1900 (NSW); and

the Copyright Act 1968 (Cwth) - at the time of its judicial consideration.

The other relevant Company personnel

Introduction

For the purposes of this decision, there are four persons who are employees of the Company to whom it will be necessary to make reference. They are:

Sami;

Mr Bachar Allam;

Mr Kassem Allam; and

Mr Ali Reza

It is not known by me whether Sami, Bachar Allam and Kassem Allam have any familial relationship. In any event, if they share any such ties other than a common surname, it is irrelevant in the context with which I need to consider their activities as part of the Company's operations. However, for clarity in identifying the various matters which need to be discussed, I shall (without disrespect to them) refer to the others sharing Sami’s surname as “Bachar” or “Kassem” as appropriate.
The three further employees and their roles are set out below.

Bachar's role with the Company

Bachar’s role with the Company can be described as having responsibility for allocating work carried out as part of the Company's activities. His primary role was the organisation of the trucks and drivers who performed waste disposal roles transporting material from construction sites where the Company was operating to waste disposal facilities at which the material would be deposited. This was required to fulfil the Company’s contractual obligations with the developer of the site from which the waste had been generated.
Bachar was interviewed by an officer of the Prosecutor on 19 December 2019. A transcript of that interview is in evidence in these proceedings. The transcript sets out Bachar’s description of the nature of the activities he undertook, on behalf of the Company (at answer to Q 43). The relevant passage from the transcript is set out below:

…, I’m just organising the trucks and following the instruction take this material from here and dump it there and that’s it, I don’t deal with the tips, I don’t deal with the job, I don’t - like, I’m dealing always with the foreman he ask me I need five trucks and they will give them the address where to dump and where to pick up.

Kassem’s role with the Company

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

Ali Reza’s role with the Company

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

The Statement of Agreed Facts

On 24 August 2021, a Statement of Agreed Facts was tendered, becoming Exhibit C. The Statement of Agreed Facts was in the following terms:

Background
The legislative framework for disposal of excavation waste
1   At the times of the alleged offences, the disposal of waste, including excavation waste, from construction sites was governed by the Protection of the Environment Operations Act 1997 (POEO Act) and the Protection of the Environment Operations (Waste) Regulation 2014 (Waste Regulation).
2   There were different types or categories of waste including:
•   aggregate;
•   asbestos;
•   bricks or concrete;
•   contaminated soil;
•   mixed waste;
•   soil (not contaminated or Virgin Excavated Natural Material (VENM));
•   VENM
•   asbestos containing/contaminated material (ACM);
•   potential acid sulphate soils (PASS);
•   general solid waste (GSW); and
•   excavated natural material (ENM).

3 Under Part 3 of the Waste Regulation, the occupiers of waste facilities were required to record certain information in relation to each delivery of waste or other material received at the facility, including the amount of any waste delivered, its waste type, its waste stream (such as construction and demolition waste), the date and time the delivery is made and the registration number of the vehicle used to make the delivery. This was an obligation that attached only to the occupiers of waste facilities.
Accounting required for disposal of excavation waste, generally
4   In summary, the waste facilities had weighbridges over which the trucks carrying waste into the facility were required to pass. The weighbridges generated weighbridge disposal dockets (dockets) which were usually given to the drivers of the trucks concerned. A function of the dockets was to provide a record of the disposal of the quantity of waste concerned. The dockets sometimes specified the source development site which had been supplied to the waste facility operator when the company disposing of the waste agreed with the operator for the waste to be disposed of at the facility, and/or given to the weighbridge operator by the truck driver when going over the weighbridge. Where an order number (job number) had been created by the waste facility for that source site, the docket sometimes specified that data. (The process by which the dockets were generated is detailed under the heading “ACE’s transactions with waste facilities” below.) The dockets were ultimately provided to the company disposing of the waste, in this case ACE Demolition & Excavation Pty Ltd (ACE). A record of the dockets was also kept by the waste facilities. ACE received dockets in one or other or both of two ways:
•   from the driver of the truck; and/or
•   from the facility, sometimes as copies, when it invoiced ACE for the cost of ACE disposing of the waste concerned; or when ACE requested them from the facility.

5   The dockets usually recorded in print form:
(a)   the name of the facility;
(b)   a unique docket number;
(c)   the date and time;
(d)   the vehicle registration number of the truck;
(e)   the identity of the company disposing of the waste (e.g. ACE);
(f)   a job number or source location for the waste;
(g)   the waste type;
(h)   the tare weight of the truck; and
(i)   the net weight of the waste.

ACE Demolition & Excavation Pty Ltd
The company and relevant senior staff
6   At the times of the alleged offences, ACE conducted civil works, such as Demolition & Excavation of development sites, and the transportation and disposal of waste.
7   At the times of the alleged offences, Mr Allam was the sole director of ACE and had been a director since 22 January 2004. Mr Allam was the sole shareholder of ACE.
8   At the times of the alleged offences, ACE simultaneously conducted excavation activities on an average of 25 development sites in NSW - most of them in the Sydney area. ACE had an office at Regents Park. Based at the office were
•   Mr Allam - director;
•   Munaf Al Sarray;
•   Bachar Allam - truck & people allocator;
•   Kassan (also “Kassem”) Allam - machinery allocator; and
•   Ameer Sidawi - accounts payable clerk & contracts administrator.

9   Mr Allam acted as the company’s chief executive officer.
10   As part of his role, Mr Al Sarray:
(a)   had oversight of the movement of waste from construction sites to waste facilities, including coordinating where waste was sent;
(b)   was responsible for collecting dockets from waste facilities and for providing copies of dockets to clients and environmental consultants;
(c)   was responsible for finishing the jobs which ACE undertook by, amongst other things, providing evidence to clients that waste anticipated to have been present on the site was lawfully disposed of.

The company’s operations
11   ACE typically quoted to development companies (including construction companies) to conduct the Demolition & Excavation phases of planned development works. Those phases often included the removal from the development site of the Demolition & Excavation waste generated by ACE.
12   ACE entered into agreements with various waste facilities for the disposal at those facilities of waste taken from particular development sites at which ACE was generating waste.
13   The system which ACE operated for the transport of waste to waste facilities was generally as follows:
(a)   excavator operators hired or employed by ACE excavated material from the development site concerned;
(b)   the excavated material was placed by the operator of an excavator either directly from the excavation or from a stockpile into a truck hired by ACE;
(c)   the truck drove to the exit gate of the site;
(d)   the gate was controlled by a traffic controller;
(e)   the traffic controller was told the type of the waste and the waste facility to which the truck should take the waste;
(f)   if he had not already been told by the allocator, the truck driver was told the destination waste facility to which the load should be taken by the traffic controller.

ACE’s transactions with waste facilities
14   In the period 2016-2017, ACE disposed of excavation waste to waste facilities, including facilities operated by:
(a)   SUEZ Recycling & Recovery Pty Ltd (SUEZ) - including its Elizabeth Drive Landfill Facility at 1725 Elizabeth Drive, Kemps Creek, NSW (SUEZ Facility);
(b)   Dial A Dump Industries Pty Ltd and Dial A Dump (EC) Pty Ltd (DADI) - including its Genesis Eastern Creek landfill and recycling facility at Kangaroo Avneue, Eastern Creek, NSW (DADI Facility); and
(c)   The Holt Estate 1861 trading as Besmaw Pty Ltd (Besmaw) - namely its Holt Land Rehabilitation Centre, corner Lindum Road and Captain Cook Drive, Kurnell, NSW (Holt Landfill).

15   The procedure to enable ACE to dispose of waste to the SUEZ Facility and the DADI Facility was that ACE already had or opened an account with the operator of the facility. The procedure included:
(a)   ACE provided the operator with information as to the types of waste to be disposed of for a particular job or for various types of waste it may dispose of;
(b)   in the case of DADI, the operator allocated an order number to the customer which was then printed on its dockets as the “Order No.”;
(c)   in the case of SUEZ, the operator allocated a “Customer ref.” which was a unique code.

16   Generally, when a truck carrying waste being disposed of by ACE came to a waste facility it was required to go over a weighbridge. The truck driver told the weighbridge operator that it was carrying waste for ACE. The weighbridge weighed the gross load. The truck travelled into the facility and tipped off its load (if one bin on a bogie truck) or loads (if two bins comprising a truck and dog) and returned to the weighbridge. There the weighbridge calculated the tare weight of the vehicle and recorded the net weight of the load/s. The weighbridge generated a docket (for details, see pars 4 and 5 above).
17   ACE disposed of waste to the Holt Landfill from at least 12 source development sites. Trucks carrying waste to the Holt Landfill for ACE from any source site went over a weighbridge which calculated the weight of the loads tipped and generated a docket (entitled “Tax invoice duplicate”) which contained the same data as referred to in paragraph 5 above.
Wolli Creek Premises
Development consent, excavation contract and site investigations
18   On 13 November 2014, development approval was granted for the demolition of existing structures and construction of two 8 storey residential flat buildings with rooftop terrace areas and basement parking, at 40-50 Arncliffe Street, Wolli Creek, NSW (the Wolli Creek Premises). Top Pacific Construction Pty Ltd (TPC), subsequently known as Top Pacific Constructions Aust. Pty Ltd (TPCA), was a construction company owned by Top Pacific Group Pty Ltd. The latter company was responsible for developing the Wolli Creek Premises.
19   Environmental Investigations Australia Pty Ltd (EI Australia) provided, amongst other things, environmental engineering services for the construction and excavation waste disposal industries. A director at EI Australia was Eric Gerges.
20   On 9 January 2017, ACE entered into a contract with TPC to carry out excavation and remediation works at the Wolli Creek Premises. ACE was engaged to, amongst other things, excavate and dispose of material from the Wolli Creek Premises. The value of the contract was $3,600,000. The contract was signed for ACE by Mr Allam.
Works at the Wolli Creek Premises
21   The contract with TPC specified that, amongst other things, ACE was required to remove all VENM, PASS, ACM and GSW from the Wolli Creek Premises.
Information provided by ACE to TPC and EI Australia in respect of waste at the Wolli Creek Premises
22   On 25 January 2017, ACE submitted an invoice to TPC.
23   On 23 February 2017, ACE submitted another invoice to TPC.
24   On 29 March 2017, Dean Huang, a contract administrator employed by TPC, sent an e‑mail to Mr Al Sarray and Mr Allam advising that further payments would only be released once further information was received from ACE, including “all dockets” for the “100% of bulk excavation” work for which ACE had claimed payment.
25   On 7 April 2017, Mr Maroun sent an e‑mail to Mr Allam reiterating that TPC would release payment to ACE once dockets were provided.
26   On 10 April 2017, an e‑mail was sent from Mr Allam's ACE e‑mail account to Mr Maroun stating that ACE would send through the dockets on that day or the next day.
27   On 18 April 2017, Mr Al Sarray sent an e‑mail to Mr Maroun attaching, amongst other things:
(a)   70 dockets for the disposal of waste material at the SUEZ Facility (18 April SUEZ Dockets). The 18 April SUEZ Dockets did not refer to "Wolli Creek". Instead, the customer reference was recorded as "H57" and, in one instance, “H57 TERRY HILLS”; and
(b)   148 dockets for the purported disposal of waste material from the Wolli Creek Premises at the DADI Facility (18 April DADI Dockets).

28   Mr Allam was listed in the "CC" field of the e‑mail, together with Mr Park Wei, Mr Wesley Wei and Mr Dean Huang.
29   On 12 June 2017, an e‑mail was sent from Mr Allam's ACE e‑mail account to Eric Gerges at EI Australia, attaching, amongst other things:
(a)   a document listing details regarding 80 loads, or 2,415.97 tonnes, of waste material (the First Holt Run Sheet);
(b)   a letter from Besmaw stating that 2,415.97 tonnes of VENM was received by Besmaw;
(c)   153 dockets for the purported disposal of waste material at the DADI Facility (12 June DADI Dockets). The 12 June DADI Dockets made reference to a range of source locations, including "Wolli Creek", "REGENTS PARK", "LIDCOMBE", and "westmead";
(d)   48 dockets for the disposal of waste at the SUEZ Facility (12 June SUEZ Dockets). The 12 June Suez Dockets did not refer to the words "Wolli Creek" but instead referred to "H57" and, in one instance, “H57 TERRY HILLS”;
(e)   an excel spreadsheet titled ‘Wolli Creek Summary’, which included 95 docket reference numbers and associated information for the purported disposal of waste from the Wolli Creek Premises (DADI Spreadsheet); and
(f)   an excel spreadsheet named ‘ACE 130217 300317’, which included 70 docket reference numbers and associated information for the disposal of waste at the SUEZ Facility (SUEZ Spreadsheet). The SUEZ Spreadsheet did not refer to the words "Wolli Creek", but instead referred to "H57" and, in one instance, “H57 TERRY HILLS”.

30   On 2 December 2017, Mr Sidawi e‑mailed Mr Gerges attaching a purported summary sheet (or run sheet) from the Holt Group. The run sheet indicated that 622 loads, or 18,186.91 tonnes, of waste material had been disposed of by ACE at the Holt Landfill (the Second Holt Run Sheet). Mr Allam was listed in the CC field of this e‑mail.
Zetland Premises
31   On 20 January 2016, development approval was granted for the demolition of existing structures and construction of a mixed use development comprising three buildings of a scale of 9 storeys, 11 storeys and 15 storeys, each above two levels of basement car parking at 105-115 Portman Street, Zetland, NSW (the Zetland Premises). The construction company that was responsible for developing the Zetland Premises was Westbourne Constructions Pty Ltd (Westbourne).
32   On 15 February 2017, ACE entered into a contract with Westbourne to carry out works at the Zetland Premises. ACE was engaged to, amongst other things, excavate and dispose of material from the Zetland Premises, design and install shoring walls and ground anchors, and perform earthworks and piling. The value of the contract was $19,000,000. The contract was signed by Mr Allam for ACE.
Works at the Zetland Premises
33   Between February and August 2017, ACE carried out and completed the works at the Zetland Premises.
34   As part of the development consent, Westbourne was required to prepare a Waste Management Plan. Westbourne prepared such a Waste Management Plan on 18 July 2016. That Waste Management Plan stated, in relation to “[e]xcess or contaminated excavation fill... to be removed off site and classified in accordance with relevant authorities”, that “[t]rucking docket records are to be kept on site to check that fill is going to the nominated landfills”. The Waste Management Plan was not included in Westbourne's contract with ACE.
Dockets provided by ACE to Westbourne in respect of waste at the Zetland Premises
35   On 2 June 2017, Mr Al Sarray sent an e‑mail to Glen Allen, a construction manager employed by Westbourne, attaching, amongst other things:
(a)   70 weighbridge dockets for the disposal of waste at the SUEZ Facility (2 June SUEZ Dockets). The 2 June SUEZ Dockets did not refer to "Zetland", but rather to "H57" and, in one instance, “H57 TERRY HILLS”; and
(b)   147 weighbridge dockets for the purported disposal of waste from the Zetland Premises at the DADI Facility (2 June DADI Dockets).

36 Mr Allam was listed in the CC field of this e‑mail.

The “Prosecutor’s Further Revised Draft Statement of Facts”

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

Sami’s messaging

Introduction

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

The 16 groups of text messages

Introduction

The 16 groups of text messages, the subject of the Prosecutor’s notice pursuant to s 97(1)(a) of the Evidence Act, are, themselves, divided into two tranches by the Prosecutor.
In his opening submissions, the Prosecutor explained the two categories of groups of messages in Exhibit A. The two categories were described by the Prosecutor in the following terms (Transcript 4 August 2021, page 18, lines 3 to 15):

One is a category of outright dishonesty; that is to say, providing information which is false or misleading in a material respect; that is, we submit, are capable of being discerned on the face of the exchange of the messages. The second category is a category that can be called, for labelling purposes, failed to direct to tell the truth; that is to say that the dishonesty or the contribution that the message exchange to the truth of the “asserted tendency” doesn't leap out at one from the messages exchanged to the same degree as the first category but is a situation where we say the employee was asking Allam a question as to what the employee should ensure is told to the waste facilities about particular waste. Whilst Mr Allam responded to the effect of "tell them what you've just told me", he did not - and we say this is forensically significant - direct the employee, "just tell the truth about it, why are you asking me", sort of thing.

The spreadsheet which became Exhibit A was subsequently annotated so as to differentiate those messages which were said by the Prosecutor to fall within the first of the above categories from those which were said to fall within the second of them.
I enquired of the Prosecutor, with respect to the various groups of text messages, whether I was being asked to draw the relevant inference for the purposes of s 97(1)(b) of the Evidence Act concerning the groups of messages in each category, on a global basis. The Prosecutor assured me that this was not the position advanced and that I potentially needed to make 16 separate rulings across the total groups of messages in the two categories.
Similarly, it will be appropriate to separate the two categories for the purposes of my examination as to whether the tendency asserted by the Prosecutor was established with respect to any or all of the groups of messages in each of those categories.
The first category is said by the Prosecutor to demonstrate that Sami gave an instruction to act dishonestly in the conveying of information concerning waste which was false in a material respect. This category comprised nine of the 16 groups of messages.
The second category of messages is said by the Prosecutor to make it clear that Sami gave instructions to an employee to tell the truth as to how waste should be described (as to source and/or composition) because there was an established practice whereby such information would not automatically be conveyed truthfully to the recipient of it.
With respect to both these tranches of text messages, the Prosecutor submits that there was a statutory obligation that the information conveyed to the recipient of it was truthful and not false or misleading in any material respect.

I consider later, separately, all of the groups of messages in each of those categories in order to determine whether the Prosecutor’s “asserted tendency” was to be drawn from each of the groups of messages in that category.

The extent of Sami's text messaging

The period during which the text messages relied upon by the Prosecutor were sent by Sami to a wide range of recipients was 24 June 2016 to 22 December 2017. There were over 15,000 text messages retrieved from Sami’s mobile phone. The 16 groups relied upon by the Prosecutor comprise only 87 of those messages.
I have earlier set out, at [50] to [56], the names and roles of the three employees of the Company to whom Sami had sent, variously, the messages pressed by the Prosecutor. In this regard, I was invited by Mr Potts to have regard to three aspects of this text messaging activity. These were:

That the total of 87 text messages set out in the spreadsheet in Exhibit A were sent over a period of ~ 650 days;

The messages sent to/from the three employees comprised a small subset only of this total messaging activity. In particular, he observed that:

during the period of the text messaging, 1,785 messages were exchanged between Sami and Bachar; 1,104 messages were exchanged between Sami and Kassem; and 173 messages were exchanged between Sami and Mr Ali Reza; and

the number of messages exchanged between Sami and Bachar which formed part of the basis for the “asserted tendency” comprised only a minuscule portion of Sami's total text messaging activity and, more particularly, comprised a minor portion of the text messaging exchanges between Sami and Bachar.

Sami's WhatsApp messaging

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

The submissions

The structure for setting out the submissions

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

The Prosecutor’s submissions

Introduction

The first day of the hearing (apart from administrative matters at its commencement) was primarily given over to the Prosecutor taking me through the list of groups of messages set out in Exhibit A as to the inferences which the Prosecutor said should be understood to arise from the various messages. What follows in this decision is a limited setting out of what I consider to be relevant elements of the Prosecutor’s submissions that were interwoven with the discussion of the groups of messages.
The Prosecutor drew attention to the fact that, for each of the executive liability offences that are charged against Sami, s 169A(2)(c)(1) would require, for a finding that Sami was guilty, that he knew or ought reasonably to have known that the offence charged against the Company would be, or was being, committed. That mental element was noted by the Prosecutor as being relevant to my consideration of matters arising in this preliminary hearing (Prosecutor’s opening at Transcript 4 August 2021, page 11, lines 17 to 19).
The Prosecutor outlined 14 propositions that were said to provide proper foundations for the charges which had been laid against the Company and Sami. Those relevant to the Prosecutor’s “asserted tendency” dealt with in this decision were the twelfth and thirteenth of those points. These were outlined as being (Transcript 4 August 2021, page 14, lines 36 to 43):

Twelfth, that Mr Allam promoted and therefore was aware of a culture and/or a practice and/or a system of work in ACE which involved dishonesty and deception in the course of dealing with waste.
Thirteenth, that Mr Allam had a tendency to promote a culture and/or a practice and/or a system of work in the company which involved dishonesty and deception when supplying information about waste to other people in the course of dealing with the waste, and was aware of such a culture of dishonesty and deceit.

The Prosecutor explained the roles of the three employees of the Company with whom Sami had exchanged the text messages which had been the subject of the groupings of text messages said to provide the foundation for the tendency asserted by the Prosecutor's notice pursuant to s 97(1) of the Evidence Act.
The Prosecutor commenced the explanation of how it was said that the two categories of text messages in Exhibit A were to be considered, in the context of s 97(1)(b) requiring me to conclude that the proposed tendency evidence will have significant probative value. In support of the proposition that I should be so satisfied, the Prosecutor relied on the decision of the High Court in Hughes v The Queen (2017) CLR 338; [2017] HCA 20 (Hughes), at [41], submitting (Transcript 4 August 2021, page 27, lines 10 to 19):

In the case of Hughes v R, … the High Court said, "The assessment of whether evidence has significant probative value in relation to each charge involves consideration of two interrelated but separate matters; (a) the extent to which the evidence supports the “asserted tendency”; (b) the extent to which the tendency makes more likely the facts making up the alleged offence." Their Honours went on, "In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged."

Although the groups of text messages in Exhibit A had been divided into two categories as earlier explained, the Prosecutor submitted that, properly understood, the groups of messages in each of the categories, although having different attributes in the various fashions earlier explained, all provided evidence supporting the “asserted tendency”.
The Prosecutor submitted that the text messages relied upon in Exhibit A, as providing the foundation for the “asserted tendency”, satisfied the tests which had been set out by the High Court in Hughes, as noted above.
At the conclusion of the Prosecutor's explaining to me of how the Prosecutor said the various groups of messages in Exhibit A should be understood, the Prosecutor then turned to address the role that tendency evidence might play as a general proposition. He submitted that a tendency, if established, would have utility for a prosecutor in being able to establish guilt of what might be regarded as the foundational offences where the tendency is said to reinforce the probability of the commission of those offences (citing Hughes and R v Bauer [2018] 266 CLR 56).
The balance of the first day was spent by the Prosecutor addressing the basis upon which the Prosecutor proposed to rely upon the “asserted tendency” and why, in the Prosecutor's submission, being permitted to rely on the “asserted tendency” would not be inappropriately prejudicial to Sami. During this process, the Prosecutor did not address the terms in which the “asserted tendency” had been framed.
During the course of questioning from me as to how I was to understand what the Prosecutor submitted should be drawn from the second category of messages in Exhibit A, the Prosecutor said (Transcript 4 August 2021, page 28, lines 32 to 44):

BUCHANAN: No, we're not saying that he was telling them to do that. The significance is that in the context of these the messages, it is clear that the employees concerned felt they needed guidance as to whether to tell the troth or not. There should, in our submission, have been no need for Mr Kassem Allam to ring or to text Mr Sami Allam. All he had to do was write on the docket that it was not clear but instead he rings Allam to find out what he should do. This is indicative of, we submit, one will infer, at the end of the day, a corporate culture or system of work whereby employees believed that sometimes Allam wants them to be dishonest and sometimes he does not but they need to check with him if they are in any doubt as to the information that should be supplied about the waste to the waste facility. This message gives rise, in our submission, to that inference, faintly, by itself but more strongly when combined with all the other messages in this application.

As can be seen from the concluding sentence of the above passage, as I understood this element of the Prosecutor's submissions, the second category of groups of messages in Exhibit A were to be taken together (as a combined bundle, as it were, as well as individually) for the purpose of me concluding that s 97(1)(b) was satisfied as providing a basis to establish the asserted “tendency” having a proper foundation in those groups of messages.
The Prosecutor explained why the tendency asserted in the notice served on Sami provided support to the offences based on the conduct of two other employees of the Company. The Prosecutor said (Transcript 4 August 2021, page 31, lines 28 to 32):

That is, that the conduct element of the executive liability offences was performed by employees, and the conduct is more likely to occur in a company where the boss has a tendency to promote a culture or practice or system of work that involves supplying information about waste to others, which information is false or misleading.

The Prosecutor submitted (written submissions at paragraph 32) that the first category of groups of text messages in Exhibit A prove, for the “asserted tendency”, on the occasions evidenced by those groups of text messages (being occasions that are not the subject of the charges against Sami), that:

Sami directed or encouraged Company employees to supply information:

about waste,

to another person,

in the course of dealing with the waste,

which information was false or misleading in a material respect.

The Prosecutor’s written submissions in support of the tendency application then proposed, at paragraph 33:

33. It is significant to their probative value that, in the case of numerous of the above text message exchanges, the Defendant knew that the employee knew what the true information was in relation to the waste concerned. In other words, the Defendant knew that, by his conduct, he was promoting a culture and/or a practice and/or a system of work in the company which involved dishonesty and deception when supplying information about waste to other people in the course of dealing with the waste.

A footnote to this paragraph identifies that the eight of the nine groups of text messages in the first category in Exhibit A fall within the submission in this paragraph.
The Prosecutor submitted that:

if information provided to another person during the course of dealing with waste, when the information is false or misleading in a material respect, this should be regarded as unusual in the context of ordinary commercial experience (citing, in a different but an analogous context, Hughes at [57]);

this provided, the Prosecutor submitted, a contribution to concluding that text messages which met this description have significant probative value, and

this will be influential in the context of fact-finding in relation to the charged offences, primarily in relation to the element of constructive knowledge under s 169A(2)(c)(i) of the POEO Act.

With respect to the groups of text messages in the second category in Exhibit A, the Prosecutor submitted (written submissions at paragraph 34):

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

The relationship between the messages and the charges against Sami

In paragraph 35 of the Prosecutor’s written submissions, the Prosecutor addressed the question of matters of dissimilarity between the messages advanced in Exhibit A as demonstrating the “asserted tendency” and the nature of the conduct pressed by the Prosecutor in the charges actually laid which give rise to Sami's alleged “executive liability”. The Prosecutor’s written submissions, in this regard, said:

35 Dissimilarities between the “asserted tendency” evidence and the matters the subject of the charges against the Defendant may be identified. An obvious one is that, on their face, the text message exchanges were about the information about waste to be supplied to waste facilities while the executive liability offences concern information about waste supplied to developer clients or their agents. However, a focus on the dissimilarities in the acts involved, and circumstances in which they occurred, of the text messages the Defendant sent his employees compared to the subject-matter of the executive liability offences, impermissibly ignores the tendency they are adduced to prove.

Sami’s record of interview

In oral submissions, the Prosecutor referred to the transcript of a record of interview with Sami. That interview, conducted by officers of the Prosecutor, had taken place on 8 February 2018. The Prosecutor drew my attention to a number of questions and answers in the record of interview (the transcript being in evidence at Tab 17 to Exhibit EES‑1 to the affidavit of Ms Spain).
The Prosecutor set out the nature of the eight separate topics that the Prosecutor submitted were addressed at various identified points in Sami's record of interview as being relevant contextual material in support of the Prosecutor's contention that the messages in Exhibit A should be taken to establish the tendency sought to be relied upon by the Prosecutor. It is appropriate to set out the terms of this passage from the transcript in its entirety. The passage was in the following terms (Transcript 4 August 2021, page 44, line 25 to page 45, line 19):

PROSECUTOR: …. We would ask your Honour to take into account the text messages evidence, the evidence which we contend is tendency evidence, in light of a number of matters contained in the transcript of that interview with the defendant. Firstly, question and answer 45 to 47, see also questions and answers 66 to 68 and 94 to 95. Admissions by the defendant as to his involvement in the running of the company, in particular, “Just overall manage the people, manage the whole show, I manage the estimators, the project managers, the site manager.”
Secondly, this is question and answer 126 to 137, admissions as to being very involved in managing waste and organising testing of materials for classification at the Zetland site.
Thirdly, at question and answer 330 to 331, see also question and answer 661 to 664, admissions by Mr Allam that he chose the waste facility. So each waste was transported and disposed of on all occasions.
Fourthly, question and answer 402 to 411, admissions that truck drivers were told by an Ace employee at the gate, that is to say the gate of the job site, “This is asbestos contaminated waste. Go to Dial A Dump then go to Bowral.” This is Mr Allam giving an explanation of the sorts of - the way in which truck drivers received their instructions as to what they were carting and where to take it.
Fifthly, at question and answer 451, Mr Allam said that he trusts Munaf Al Sarray. “You know the guy worked for me and he’s been with me and I trust what he’s doing.” Now, in fairness to the defendant, I should say that was in response to a question about the fact that a statutory notice had been responded to on behalf of the company by Munaf Al Sarray and he was asked to comment on that response and his response basically was, “Well, I didn’t read it. I relied on Munaf Al Sarray to say the right thing.” And his explanation as to why he did that is what we rely upon.
At, sixthly, question and answer 511 and 530 to 535, admission as to being involved in managing waste and personally organising testing of materials, so classification at the Wolli Creek premises.
Seventhly, question and answer 855 to 858, admissions as to running a business, being motivated by cost. This was in the context of answering questions about why he chose a particular landfill for waste disposal.
And finally, question and answer 220 to 222, Mr Allam told the EPA about ACE deciding where to dispose of material and “shopping around” - I’ve added “P‑I‑N‑G” to the word “shop” - “shop around,” which we submit is part of the evidence showing that the defendant was, completely unsurprisingly, cost-conscious in the conduct of his business, but that is a feature of the prosecution case, which we say is important to understanding why the offences charged were committed.

It will be necessary, in my consideration of the Prosecutor's submissions in support of its seeking to rely on the “asserted tendency”, to examine the transcript of Sami's record of interview, paying regard to the various questions and answers cited by the Prosecutor in the above passage.

The submissions for Sami

Generality and the test of “substantive”

Mr Potts’ submissions on behalf of Sami started at the beginning of the second day of the hearing. He commenced by asking me to return to the terms in which the tendency set out in paragraph 5 of the Prosecutor’s tendency notice had been expressed. Mr Potts submitted (Transcript 5 August 2021, page 55, line 38 to page 56, line 1):

The relevance of the text message evidence in Exhibit A, in the case against Sami on a non‑tendency basis, demonstrated that (Transcript 24 August 2021, page 132, lines 17 to 22):

We submit that a person who promotes dishonesty in the supply of information to third parties about waste the company is handling is himself less likely to take all reasonable steps to avoid that sort of thing happening, in other words, the commission of the executive liability offences, the supply of information to third parties about the waste which is false or misleading.

With respect to the charges against the Company, the Prosecutor submitted that the fact that employees of the Company were shown, via the messages in Exhibit A, to be conveying information concerning waste disposal activities of the Company to third parties, this made it more likely that other employees of the Company (and therefore the Company) would have done it on the occasions giving rise to the charges laid against the Company.

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

Mr Potts submitted that, for the purposes of my consideration of the Prosecutor’s reliance on Sami having constructive knowledge of each of the offences, those elements in Exhibit A, if relied upon for a non‑tendency purpose, were incapable of being relied upon for that purpose if those messages post‑dated any of the three executive liability charges laid against Sami. In this context, I had the following exchange with Mr Potts (Transcript 5 August 2021, page 119, lines 18 to 22):

HIS HONOUR: So I assume you would say to me that if I was looking at Exhibit A for that purpose, there would be three temporal cut-off lines that you would say I would draw differing for the three charges?
POTTS: Exactly, your Honour, yes.

Mr Potts submitted that the Exhibit A material (and any associated material) could only be relevant if it is admitted for a tendency purpose and, if not, is otherwise irrelevant and inadmissible. He further submitted that, if I was to be satisfied that, even if I concluded that the material had some relevance, it should be excluded pursuant to either ss 135 or 137 of the Evidence Act.
With respect to the possible use of the material in Exhibit A for non‑tendency purposes arising from s 169A(2)(c)(ii), Mr Potts submitted that this required compartmentalisation of the text messages so that I considered, for each of the relevant charge dates shown in Annexure A, only those groupings of text messages which occurred prior to the charge dates set out in Annexure A.
In this context, I had the following exchange with Mr Potts (Transcript 24 August 2021, page 144, lines 4 to 44):

HIS HONOUR: … Does that mean that, for example, I am required to give four separate rulings based on those four separate temporal groupings of text messages?
POTTS: With respect, yes, your Honour, because we say, for example, in trying to work out what Mr Allam ought reasonably to have known on 18 April 2017, we say as a matter of logic and, therefore, admissibility, item 16 in Exhibit A, which is a text exchange on 22 December 2017, we say that's logically incapable of saying anything relevant about what Mr Allam ought to have known back in April 2017, and so this is not text message material where there's said to be some admission made by Mr Allam about something he knew on 18 April or 2 June or 2 December. This is not material where it's said he touches on the subject matter of the charges or that he makes an admission about his state of knowledge being the ultimate fact in issue or some contextual fact of which he had knowledge at the relevant dates. These are simply text messages which the prosecutor says evidence other, what we would characterise as unrelated, instances of dishonesty in the case of the blue items or inferred dishonesty in the case of the green items on other unrelated occasions, and the question
HIS HONOUR: I understand how you can say to me that for the purposes of 169A(2)(c)(i), because "would be" or "is being" committed, at least as you advance it, does not permit a retrospective examination of text messages. That's what I understand you put to me, is it not?
POTTS: We say what that means is he has to appreciate either that the offence is going to be committed, so some time in advance of 18 April, he ought reasonably to appreciate that, or, at the latest, he has to appreciate on 18 April 2017 at about 7.23pm that email is being sent. After 7.23pm on 18 April 2017, if he later knows the offence has been committed or comes to have knowledge which means he ought reasonably to have known it's been committed, that's not enough to constitute the element of the offence. He has to know, at the latest, by 18 April 2017 at 7.23pm that the offence is being committed and we say logically, given the content of the Exhibit A text messages, any text message sent after the time and date of the offences charged against Mr Allam is incapable of rationally affecting the question of whether or not he ought to have known either prior to or at the time of the commission of the executive liability offence it's incapable, if you have a text message that comes after that, of affecting that question, because the subject matter of these texts is not any form of admission or conversation about his state of mind or things he knew prior to 7.23pm on 18 April 2017, for example.

In summary, Mr Potts submitted that any text messages in Exhibit A, which took place after the date of any of the alleged offences, are not logically capable of affecting whether or not Sami ought to have known of the offending conduct as at the relevant date charged.
The next matter of a temporal nature pressed by Mr Potts was his submission that it was appropriate to have regard to the dates of the alleged offending conduct and of the subsequent text messages. The subsequent messages could not be looked at in a retrospective fashion to impute to Sami knowledge of the commission by the Company of an executive liability offence, Mr Potts submitted (Transcript 24 August 2021, page 146, lines 10 to 18):

We say, looked at properly, if it's not being deployed to prove a tendency, it's incapable of rationally affecting the factual question of whether Mr Allam ought reasonably to have known that the particular executive liability offence alleged by Ace would be, or is being, committed, and we put that submission in those stark terms, that proof of the text messages ..(not transcribable).. this way, not able to be used as tendency, not able to be used as coincidence, is incapable of logically affecting the existence of that fact in issue. These text messages are, therefore, irrelevant on that asserted basis.

Mr Potts next turned to address what he described as the second asserted basis for which the Prosecutor proposed to use the text messages in Exhibit A for non‑tendency purposes in support of the executive liability charges laid against Sami. In this context, Mr Potts acknowledged that it was accepted:

each of the e‑mails were sent on the dates and at the times recorded in items 1, 2 and 4 in Annexure A - the summary of the charges;

authorship of the e‑mails was not in dispute;

that the e‑mails constituted supply of information about waste was not in dispute;

that the information was supplied to another person in the course of dealing with the waste was also not in dispute.

However, Mr Potts observed that the questions of:

whether or not the material was false or misleading; and

whether or not the conduct of Mr Al Sarray and/or Mr Sidawi should be regarded as conduct of the Company

were in issue.

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

Consideration

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

Conclusions

First, as requested by the Prosecutor (Transcript 4 August 2021, page 27, lines 1 to 3), with there being no complaint by Mr Potts as to satisfaction of the notice requirement in s 97(1)(a) of the Evidence Act, I find that the Prosecutor has given reasonable notice in writing of the Prosecutor’s intention to seek to adduce evidence of the “asserted tendency”.
For the matters requiring determination, I have concluded as follows:

with respect to the “dishonesty” groups of text messages in Exhibit A which were said by the Prosecutor to demonstrate that Sami had the “asserted tendency” set out at [12] of this judgment, I am satisfied that six of nine of those message groups demonstrate that tendency and that three do not;

with respect to the groups of messages in Exhibit A said by the Prosecutor to demonstrate “dishonesty inferred” and thus that Sami had the tendency set out at [12], I am satisfied that none of those message groups are capable of establishing that Sami had the “asserted tendency”;

with respect to the six messages noted in (a) above, I am satisfied that the tendency they demonstrate has significant probative value and this probative value is not outweighed by any prejudice to Sami of the admission of those messages as evidencing that Sami held that tendency; and

with respect of the Prosecutor’s proposal that the messages referred to above in (b) should be admitted for purposes other than establishing that Sami had the tendency set out at [12], I am satisfied that the Prosecutor should be permitted to seek to rely, for non‑tendency purposes, on only those groups of messages in Exhibit A that were also found to support the “asserted tendency”.

Directions

To give effect to the differing conclusions which I have reached with respect to the various elements advanced on behalf of the Prosecutor in support of the tendency asserted to be held by Sami, it is necessary to formalise those outcomes by orders addressing the elements of the Prosecutor’s Notice of Motion filed on 16 July 2021 and the responsive Notice of Motion which was also filed on behalf of Sami on 16 July 2021.

To permit this to happen, the parties are directed to settle orders reflecting the determinations I have made in this decision; and

If the parties are unable to agree, the directions given in Environment Protection Authority v ACE Demolition & Excavation Pty Ltd; Allam [2022] NSWLEC 45 provide the mechanism by which the matter can be brought back for determination of any dispute concerning the necessary orders.

**********

Annexure A

Summary Table of Charges

Charge No.	Relevant *POEO* Sections	Details of Email	Pleaded particulars re false or misleading in a material request
ACE- 2020/357465 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:

Elizabeth Emily Spain affidavit affirmed 15 July 2021- in folder 2 of USB, item 1
Elizabeth Emily Spain affidavit affirmed 30 July- in folder 3 of USB, item 1
Carney Gar Leung Yu affidavit- in folder 3 of USB, item 2
Kate Bleakman affidavit- in folder 3 of USB, item 3
Benjamin James Dales affidavit- in folder 3 of USB, item 5

• Exhibits:

EES-1 to Spain 15 July affidavit- in folder 2 of USB, item 2
KB-1 to Bleakman affidavit- in folder 3 of USB, item 4
BJD-1 to Dales affidavit- in folder 3 of USB, item 5

• Aide memoires:

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:

Elodie Jane Cheesman affirmed 16 July 2021 pghs [1]-[4], [21]
[35] only- in Folder B Folder 1 of Defendants' USB
George Paul Pasas sworn 30 July 2021- in Folder B Folder 1 of Defendants' USB
Roberto Antonio Pupo sworn 23 June 2020 paragraphs [125]
[126] only- in Folder C of Defendants' USB
Carney Gar Leung Yu affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)

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

• Exhibits:

EJC-1 to Cheesman affidavit pages 21-125 only in Folder B Folder 1 of Defendants' USB
GP-1 to Pasas affidavit- in Folder B Folder 1 of Defendants' USB
RAP-01 to Pupo affidavit Tab 5 Table 7 - in Folder C of Defendants' USB
RAP-09 Tab 28 Folder "Sami Allam's Phone Extracts" - in Folder C of Defendants' USB (and not "Natives" folder in Tab 28)
KB-1 to Bleakman affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)
BJD-1 to Dales affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)

Amendments

12 May 2022 - Incorrect citation of Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 43 should properly be [2022] NSWLEC 45.

Decision last updated: 12 May 2022

Medium Neutral Citation:	Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7
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 orders at [385]
Catchwords:	EVIDENCE - Prosecutor serves tendency notice on Defendant pursuant to s 97 of the Evidence Act 1995 - tendency said to be based on text messages obtained from Defendant’s mobile phone - text messages arranged by Prosecutor into 16 message conversations - message conversations divided by Prosecutor into two groups - first group said by Prosecutor to evidence dishonesty by Defendant - second group said by Prosecutor to lead to inference of dishonesty by the Defendant - Defendant seeks rejection of tendency as being pleaded at too great a level of generality - tendency not pleaded at too great a level of generality - Defendant seeks exclusion of groups of message conversations as not demonstrating pleaded tendency - some (but not all) groups of message conversations proposed to be relied upon to demonstrate dishonesty ruled admissible for tendency purposes - all groups of message conversations said to infer dishonesty ruled inadmissible for tendency purposes
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Code Act 1924 (Tasmania) Copyright Act 1968 (Cwth) Evidence Act 1995 (NSW) Protection of the Environment Operations Act 1997 Evidence Amendment (Tendency and Coincidence) Act 2020
Cases Cited:	Adam v R (2014) 246 A Crim R 232; [2014] NSWCCA 265 Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 Anthony v Morton [2018] NSWSC 1884 Boughey v The Queen (1986) 161 CLR 10; [1986] HCA 29 El‑Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 44 Environment Protection Authority v ACE Demolition & Excavation Pty Ltd; Allam [2022] NSWLEC 45 Environment Protection Authority v Allam [2021] NSWLEC 103 Galea v Farrugia [2013] NSWCA 164 Hughes The Queen (2017) CLR 338; [2017] HCA 20 Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Bauer (2018) 266 CLR 56; [2018] HCA 40 R v Droudis (No. 13) [2016] NSWSC 1350 R v Pullen [2018] NSWCCA 264 R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 RH v R [2014] NSWCCA 71 Richards v Macquarie Bank (No 2) (2012) 301 ALR 494; [2012] FCA 1403 Simpson v The Queen (1998) 194 CLR 228; [1998] HCA 46 TB v R [2019] NSWCCA 224
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