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Gamage v Riashi

Gamage v Riashi

Case [2024] NSWSC 975 8 August 2024

Appeal

Jurisdiction

Surveillance

Statutory Interpretation

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: Gamage v Riashi & Anor [2024] NSWSC 975
Hearing dates: 8 February 2024
Date of orders: 8 August 2024
Decision date: 08 August 2024
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) The Court grants leave to appeal on Grounds A, B, K, N, D and P;
(2) Otherwise, the Court refuses leave to appeal;
(3) The Court dismisses the appeal and the Summons;
(4) The plaintiff shall pay each of the respondents’ costs of and incidental to the appeal and the application for judicial review.

Catchwords:
APPEAL – application for leave to appeal from Local Court from various interlocutory decisions in criminal proceedings – where application for leave and appeal heard simultaneously – Court’s jurisdiction for orders in the nature of certiorari and declarations pursuant to Supreme Court Act 1970 (NSW) discussed – leave granted for some grounds and appeal dismissed – otherwise leave refused
CRIMINAL PROCEDURE – surveillance warrant under Surveillance Devices Act 2007 (NSW) – authorisation of surveillance device for recording conversations – relationship between Surveillance Devices Act and Telecommunications (Interception and Access) Act 1979 (Cth) – powers of judicial officers to issue warrants – construction of the Independent Commission Against Corruption Act 1988 (NSW) in relation to functions and powers provided to officers of the Independent Commission Against Corruption – powers of ICAC officers to commence proceedings prosecuting offences before the promulgation of s 14A

Legislation Cited:
Commonwealth Constitution, s 109
Courts and Other Justice Portfolio Legislation Amendment Act 2015 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 53, 54, 55, 57, Pt 5 Div 1
Criminal Procedure Act 1986 (NSW), ss 3(1), 14, 14A, 37, 173, 174
Evidence Act 1995 (NSW), s 138
Independent Commission Against Corruption Act 1988 (NSW), ss 13, 14
Interpretation Act 1987 (NSW), s 34
Judiciary Act 1903 (Cth), s 78B
Supreme Court Act 1970 (NSW), ss 22, 23, 69, 75
Surveillance Devices Act 2007 (NSW), ss 7, 16, 17
Telecommunications (Interception and Access) Act 1979 (Cth), ss 5F, 6, 7
Criminal Procedure Regulation 2010 (NSW), reg 101

Cases Cited:
Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48
Hilton v Wells (1985) 157 CLR 57; [1985] HCA 16
Lazarus v New South Wales Director of Public Prosecution [2015] NSWSC 1116
Maxwell v Keun [1928] 1 KB 645
Onslow v Inland Revenue Commissioners (1890) 25 QBD 465
Peterborough v Overseers of the Parish of Wilsthorpe (1883) 12 QBD 1
Re Ludeke; Ex parte Customs Officers’ Association of Australia, Fourth Division (1985) 155 CLR 513; [1985] HCA 31
Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185

Texts Cited:
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 26 May 1988

Category: Principal judgment
Parties: Don Gamage (Plaintiff)
Michael Riashi (First Defendant)
Independent Commission Against Corruption (Second Defendant)
Director of Public Prosecutions (NSW) (Third Defendant)
Representation: Counsel:
A Bhasin (First and Second Defendants)
E Jones (Third Defendant)
Solicitors:
Plaintiff (In Person)
Crown Solicitor for NSW…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gamage v Riashi

Details

AGLC: Gamage v Riashi [2024] NSWSC 975
Case: [2024] NSWSC 975
Decision Date: 08 August 2024

CaseChat Overview and Summary

The appellant, Gamage, sought leave to appeal against several interlocutory decisions made by the Local Court in the context of criminal proceedings against him. The appeal was heard together with the application for leave. The primary issue before the court was whether it had the jurisdiction to grant orders in the nature of certiorari and declarations as per the Supreme Court Act 1970 (NSW). Additionally, the court examined the authorisation of surveillance devices under the Surveillance Devices Act 2007 (NSW) and its interplay with the Telecommunications (Interception and Access) Act 1979 (Cth). Another significant point of contention was the interpretation of the Independent Commission Against Corruption Act 1988 (NSW), specifically concerning the functions and powers provided to ICAC officers.

The court found that while it did have the jurisdiction to grant the orders sought by Gamage, the application for leave was not well founded for certain grounds. Consequently, the court granted leave for some grounds and dismissed the appeal for others, while refusing leave for the remaining grounds. The court's reasoning emphasised the importance of the statutory framework governing surveillance and the powers of judicial officers and ICAC officers in the context of criminal proceedings. The court also considered the construction of the Independent Commission Against Corruption Act 1988 (NSW) in relation to the functions and powers provided to ICAC officers, particularly in relation to prosecuting offences before the promulgation of section 14A.

The final orders of the court were to grant leave for some grounds of appeal while dismissing the appeal on others, and refusing leave for the remaining grounds. This outcome reflects the court's careful consideration of the statutory framework and the specific powers of judicial officers and ICAC officers as delineated in the respective statutes.

Orders