Environment Protection Authority v Allam [2021] NSWLEC 103

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Allam [2021] NSWLEC 103 Hearing dates: 4, 8, 24 and 25 August 2021 Date of orders: 24 September 2021 Decision date: 24 September 2021 Jurisdiction: Class 5 Before: Moore J Decision: See order at [59] Catchwords: EVIDENCE - mobile phone seized pursuant to search warrant - data on mobile phone protected by passcode - statutory notice requiring provision of passcode to Prosecutor - objection by Defendant to provision of passcode - objection prevents passcode being used as evidence against Defendant - Notice of Motion seeking advance ruling that evidence obtained from the mobile phone after using the passcode is inadmissible - question of whether s 212 of the Protection of the Environment Operations Act 1997 provides similar protection to information obtained from the mobile phone by using the passcode - s 212 specifically removes protection from self‑incrimination by evidence derivatively obtained by use of the passcode - use of derivatively obtained information capable of being evidence against the Defendant - preliminary ruling to reject evidence as inadmissible refused Legislation Cited: Environmental Planning and Assessment Act 1979, s 122U(5) Evidence Act 1995 (NSW), s 192A Protection of the Environment Operations Act 1997, ss 144AA, 169A, 193 and 212 Cases Cited: Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21 Ku-ring-gai Council v Chia (No 4) [2018] NSWLEC 75 Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Sorby v The Commonwealth (1983) 152 CLR 281; [1983] HCA 10 Category: Procedural rulings Parties: Environment Protection Authority (Prosecutor) Sami Allam (Defendant) Representation: Counsel: Mr D Buchanan SC/Ms F Graham, barrister (Prosecutor) Mr J Potts SC/Ms K Morris, barrister (Defendant)