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

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 44 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 rulings at [148] Catchwords: EVIDENCE - Defendant charged with three offences pursuant to s 144AA(2) and one offence pursuant to s 144AA(1) of the Protection of the Environment Operations Act 1997 - alleged conduct was supplying information about waste to another person in the course of dealing with the waste where that information was false or misleading in a material respect - prosecutions based on e‑mails sent by employees of the Defendant - conduct of employees said to be imputed to the Defendant - e‑mails said to have attached documents that were "false or misleading in a material respect" - for s 144AA(2) offences, the information supplied is required to be known to be false or misleading in a material respect - for the s 144AA(1) offence, the information supplied is merely required to be false or misleading in a material respect - charges pursuant to s 144AA(2) can give rise to conviction pursuant to s 144AA(1) if element of knowledge is not established by virtue of s 144AA(2A) - Prosecutor serves tendency notice on Defendant pursuant to s 97 of the Evidence Act 1995 (NSW) - application pursuant to s 192A of the Evidence Act 1995 (NSW) for an advance ruling on admissibility of "asserted tendency" - tendency said to be based on e‑mails sent by a different employee of the Defendant - e‑mails each said to have attached a document that supplied information about waste to another person in the course of dealing with the waste where that information was false or misleading in a material respect - requirement to give notice of intention to rely on tendency evidence - no contest proper notice was given - Prosecutor's case that evidence of the "asserted tendency" has significant probative value - Prosecutor's case on "significant probative value" to be taken at its highest - evidence of "asserted tendency" has significant probative value - question of whether the probative value of the "asserted tendency" evidence outweighs "the danger of unfair prejudice" to the Defendant - probative value of the "asserted tendency" evidence does outweigh the danger of unfair prejudice to the Defendant - Prosecutor granted advance evidentiary ruling that the tendency evidence is admissible - use of tendency evidence limited to exclude use for proving knowledge of falsity for charges pursuant to s 144AA(2) Legislation Cited: Evidence Act 1995 (NSW), ss 97, 101, 135, 136, 137 and 192A Protection of the Environment Act 1997, ss 144AA, 169A, 169C and 212A Cases Cited: Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 Anthony v Morton [2018] NSWSC 1884 Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 El‑Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 Environment Protection Authority v ACE Demolition & Excavation Pty Ltd; Allam [2022] NSWLEC 45 Environment Protection Authority v Allam [2021] NSWLEC 103 Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Meridian Global Funds Management Asia Limited v Securities Commission [1995] 2 AC 500 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 Richards v Macquarie Bank (No 2) (2012) 301 ALR 494; [2012] FCA 1403 Texts Cited: Macquarie Dictionary Category: Procedural rulings Parties: Environment Protection Authority (Prosecutor) ACE Demolition & Excavation Pty Ltd (Defendant) Representation: Counsel: Mr D Buchanan SC/Ms F Graham, barrister (Prosecutor) Mr J Potts SC/Ms K Morris, barrister (Defendant)