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

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

The court held that the EPA could rely upon evidence of three emails sent by an employee of the defendant attaching a waste classification certificate as demonstrating the company had a tendency to supply information about waste to another person in the course of dealing with waste, which information was false or misleading in a material respect. The probative value of this tendency evidence outweighed the risk of unfair prejudice to the defendant, none of the discretionary exclusions in ss 135 or 137 were engaged, but a limitation was imposed under s 136 such that the tendency evidence could not be used for proving the defendant knew the information was false or misleading (relevant to s...

Jurisdiction
Australia
Judgment Date
10 May 2022
Procedural Posture
Criminal Prosecution – Interlocutory (advance Evidentiary Ruling) / Interlocutory Judgment on Admissibility of Tendency Evidence
Outcome
Prosecutor's application granted in part with limitation; tendency evidence admissible subject to direction.
Legal Topics
['admissibility of Tendency Evidence' 'false or Misleading Information About Waste' 'corporate Criminal Liability' 'protection of the Environment Operations Act Offences' 'advance Evidentiary Rulings']
['environmental Law' 'criminal Law' 'evidence Law'] ['admissibility of Tendency Evidence' 'false or Misleading Information About Waste' 'corporate Criminal Liability' 'protection of the Environment Operations Act Offences' 'advance Evidentiary Rulings']

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Procedural Posture

Criminal Prosecution – Interlocutory (advance Evidentiary Ruling) / Interlocutory Judgment on Admissibility of Tendency Evidence

Legal Issues

  1. 1 ["Whether evidence of the company's alleged tendency to supply false or misleading information about waste is admissible under Evidence Act 1995 (NSW) ss 97 and 101." 'Whether the probative value of the tendency evidence outweighs the danger of unfair prejudice to the defendant under Evidence Act 1995 (NSW) ss 101, 135, 137.' 'Whether the tendency evidence can be used for proof of knowledge required by charges under s 144AA(2) POEO Act.' 'Whether adequate notice was given under s 97(1)(a) Evidence Act.']

Ratio Decidendi

The court held that the EPA could rely upon evidence of three emails sent by an employee of the defendant attaching a waste classification certificate as demonstrating the company had a tendency to supply information about waste to another person in the course of dealing with waste, which information was false or misleading in a material respect. The probative value of this tendency evidence outweighed the risk of unfair prejudice to the defendant, none of the discretionary exclusions in ss 135 or 137 were engaged, but a limitation was imposed under s 136 such that the tendency evidence could not be used for proving the defendant knew the information was false or misleading (relevant to s...

Court Disposition

Prosecutor's application granted in part with limitation; tendency evidence admissible subject to direction.

Orders

  • ['The Prosecutor can rely upon evidence of three emails sent by Mr Bachar Allam attaching waste classification certificate E22847_WCC03 as demonstrating ACE Demolition & Excavation Pty Ltd had a tendency to supply information about waste to another person in the course of dealing with the waste, which information...