Gamage v Riashi

Case [2025] NSWCA 84


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Gamage v Riashi [2025] NSWCA 84
Hearing dates: 4 April 2025
Date of orders: 30 April 2025
Decision date: 30 April 2025
Before: Leeming JA at [1];
Basten AJA at [2];
Griffiths AJA at [64]
Decision:

(1)   Grant the applicant leave to appeal from the judgment and orders in the Common Law Division of 8 August 2024.

(2)   Direct the applicant to file a notice of appeal in the terms of the amended draft notice of appeal within 7 days.

(3)   Set aside orders (3) and (4) made by the primary judge on 8 August 2024.

(4)   Declare that, the Independent Commission Against Corruption having no power to prosecute for matters the subject of an investigation by it into corrupt conduct involving the applicant, neither the Commission nor an officer of the Commission had authority to issue the court attendance notices in relation to sequences 1 and 6-13 in October 2011.

(5)   Set aside the convictions entered in the Local Court on 9 December 2024 and the sentences consequent upon those convictions.

(6) Declare that the Independent Commission Against Corruption, and its duly authorised officer, did not lack authority to institute proceedings for breaches of the Independent Commission Against Corruption Act 1988 (NSW).

Catchwords:

ADMINISTRATIVE LAW – powers of public authority – power to commence legal proceedings – court attendance notices issued by officer of Independent Commission Against Corruption – notices not signed by registrar – officer acting as “public officer” within s 3(1) of the Criminal Procedure Act 1986 (NSW) – whether officer acting in an “official capacity” – whether powers and functions of Commission extend to laying charges under the Crimes Act 1900 (NSW) for matters the subject of investigation into corrupt conduct – whether power and functions of Commission extend to laying charges for breaches of the Independent Commission Against Corruption Act 1988 (NSW)

STATUTORY INTERPRETATION – implied powers and functions of public body – powers necessary or reasonably incidental to the exercise of functions and powers – legislation to be read harmoniously

Legislation Cited:

Criminal Procedure Act 1986 (NSW), ss 3, 14, 172, 173, 174

Independent Commission Against Corruption Act 1988 (NSW), ss 2A, 8, 9, 12, 13, 14, 19, 74, 74A, 74B, 99, 116

Cases Cited:

AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248

Balog v Independent Commission against Corruption (1990) 169 CLR 625; [1990] HCA 28

Deputy Commissioner of Taxes (SA) v Elder’s Trustee and Executor Co Ltd (1936) 57 CLR 610; [1936] HCA 64

Lazarus v Director of Public Prosecution NSW [2016] NSWCA 47

Lazarus v Independent Commission Against Corruption [2019] NSWCA 100

Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37

Lazarus v NSW Director of Public Prosecution [2015] NSWSC 1116

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

Shanahan v Scott (1957) 96 CLR 245, 250; [1957] HCA 4

Texts Cited:

NSW…

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Gamage v Riashi [2025] NSWCA 84
Case
[2025] NSWCA 84
Decision Date

CaseChat Overview and Summary

In *Gamage v Riashi*, the applicant sought leave to appeal from a judgment of the Common Law Division concerning the validity of court attendance notices issued by an officer of the Independent Commission Against Corruption (ICAC). The dispute centred on whether the ICAC officer had the authority to issue these notices, which were not signed by a registrar, and whether the ICAC's powers extended to laying charges under the *Crimes Act 1900* (NSW) or the *Independent Commission Against Corruption Act 1988* (NSW) for matters under investigation.

The primary legal issues before the Court of Appeal were whether the ICAC officer was acting as a "public officer" within the meaning of the *Criminal Procedure Act 1986* (NSW) and whether they were acting in an "official capacity" when issuing the notices. Further, the court had to determine if the powers and functions of the ICAC encompassed laying charges for breaches of the *Crimes Act* related to corrupt conduct investigations, and similarly, for breaches of the *Independent Commission Against Corruption Act*.

The Court of Appeal reasoned that the powers of a public body should be interpreted harmoniously with its statutory functions, implying powers that are necessary or reasonably incidental to the exercise of its express powers. However, the court found that the ICAC did not have the power to prosecute for matters that were the subject of its investigation into corrupt conduct involving the applicant under the *Crimes Act*. Consequently, the court held that neither the ICAC nor its officer had the authority to issue the court attendance notices in question for those specific offences. The court also clarified that the ICAC and its authorised officers did not lack the authority to institute proceedings for breaches of the *Independent Commission Against Corruption Act*.

The Court of Appeal granted leave to appeal, set aside certain orders of the primary judge, and declared that the ICAC lacked the power to prosecute for the *Crimes Act* offences, thereby invalidating the court attendance notices and the consequent convictions and sentences. The court also made a declaration confirming the ICAC's authority to institute proceedings for breaches of its own Act.

Orders

Orders of the court

(1) Grant the applicant leave to appeal from the judgment and orders in the Common Law Division of 8 August 2024.

(2) Direct the applicant to file a notice of appeal in the terms of the amended draft notice of appeal within 7 days.

(3) Set aside orders (3) and (4) made by the primary judge on 8 August 2024.

(4) Declare that, the Independent Commission Against Corruption having no power to prosecute for matters the subject of an investigation by it into corrupt conduct involving the applicant, neither the Commission nor an officer of the Commission had authority to issue the court attendance notices in relation to sequences 1 and 6-13 in October 2011.

(5) Set aside the convictions entered in the Local Court on 9 December 2024 and the sentences consequent upon those convictions.

(6) Declare that the Independent Commission Against Corruption, and its duly authorised officer, did not lack authority to institute proceedings for breaches of the Independent Commission Against Corruption Act 1988 (NSW).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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