R v Gamage

[2022] NSWSC 189

Supreme Court

New South Wales

Medium Neutral Citation:	R v Gamage [2022] NSWSC 189
Hearing dates:	14 February 2022
Date of orders:	02 March 2022
Decision date:	02 March 2022
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Application to revoke bail conditions refused
Catchwords:	BAIL – bail conditions – application to revoke all conditions – whether Crown case doomed to fail – where applicant contends charges are legally and factually incapable of success – whether present application permits consideration of such contentions – application refused
Legislation Cited:	Bail Act 2013 (NSW), s 51
Category:	Principal judgment
Parties:	Don Gamage (Applicant) Crown (Respondent)
Representation:	Solicitors: Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2021/360501
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Don Gamage seeks a variation of his bail conditions pursuant to s 51 of the Bail Act 2013 so that all of the conditions are revoked or deleted. Mr Gamage is charged with the following offences alleged to have occurred between 2006 and 2010:

8 x make a false statement with intent to obtain financial advantage

2 x give false and misleading evidence to ICAC

1 x offer corrupt reward ($15,000)

1 x make false statement to ICAC officer

1 x hinder ICAC officer.

2. Mr Gamage was originally refused bail on 3 December 2021 by Magistrate Stewart at Central Local Court. He was later refused bail on 13 May 2021 at the same court by Magistrate Quinn. On 8 September 2021, Fagan J granted bail on the conditions that still apply. An application to delete the conditions was refused by Magistrate Kennedy at the Downing Centre Local Court on 10 December 2021.

3. The conditions imposed by Fagan J are as follows:

1. To be of good behaviour;

2. To appear at Central Local Court on 8 November 2021, and on such dates thereafter as required;

3. To report to Bankstown Police Station 7 days a week, between the hours of 6am and 8pm;

4. To live at XX Cooper Road, Yagoona, NSW, 2199;

5. The applicant is not to have any contact in any way, except through a legal representative, with Stephen Blackadder, Mr Michael Riashi, or any other person whom he knows to be a prosecution witness;

6. The applicant is to surrender his passport to the officer-in-charge at Bankstown Police Station;

7. The applicant is not to apply for any passport or travel document;

8. The applicant is not to go within 1km of a departure point from the Commonwealth of Australia;

9. The applicant is not to leave the State of New South Wales;

10. The applicant is not to apply for any position of employment that requires qualifications, experience or skill in engineering, and nor is he to undertake any services on contract or otherwise that require expertise, skill or experience in engineering.

4. In very general terms, Mr Gamage claims that his existing bail conditions should be revoked because:

• the warrant for his arrest was fraudulent;

• Court Attendance Notices were never served on him;

• the prosecution is 'ultra vires' because the prosecutor (the ICAC investigator) does not have the power to prosecute a person in NSW;

• his notice of motion to stay based on 'ultra vires' (listed for hearing on 16 June 2022) will 'inevitably' be successful;

• the charges against him are frivolous; and

• the courts lack jurisdiction to entertain the proceedings.

5. By reason of the fact that Mr Gamage’s propositions were not entirely clear to me when the matter was listed for hearing, I directed that he and the Crown provide me with written submissions in elucidation of their respective positions with respect to Mr Gamage’s current complaints. Mr Gamage has also provided submissions in reply. I have considered those submissions in detail.

6. Mr Gamage contends that he has been the subject of a concerted campaign against him, bordering on or in fact amounting to a conspiracy. Part of what he says is that the ICAC, the DPP, the prosecution witnesses and court staff have combined against him to commence or promote the charges he currently faces.

7. The Crown case, in contrast, is that Mr Gamage is a serial fraudster who, over a period of four years or so has repeatedly created and submitted false documents in order to secure employment. The Crown alleges that Mr Gamage repeatedly lied to ICAC investigators and lied under oath at the ICAC in May and June 2010. It is unnecessary for present purposes to refer to these matters in more detail. It should be noted that Mr Gamage disputes these assertions.

8. As referred to elsewhere in these remarks, Mr Gamage has filed an application for a permanent stay of the charges that he faces. That application is listed for hearing in the Downing Centre Local Court on 16 and 17 June 2022. His present application to revoke the conditions attaching to his bail effectively brings the stay application forward for determination by me.

9. The difficulty facing Mr Gamage at this point, it seems to me, is that such an approach, if I were to accede to it, would require me to make a final and definitive decision about the merits of his contentions and the viability of the charges that he faces. A moment’s reflection upon that course necessarily shows that significantly contested factual and legal issues would have to be determined, including (presumably) by the tender of documents and the calling of witnesses. It is or should be apparent that such a course is not one that is easily or ordinarily accommodated within an application to revoke bail conditions.

10. Clearly enough, decisions on factual matters can be made on release applications or cognate proceedings such as the present. By way of example, it is always possible for a Crown witness to give sworn evidence on a bail application that the version of events set forth in a statement supplied by him or her to the police, upon which the charges against an applicant are wholly based, is wrong for some perfectly obvious and acceptable reason or that the witness for some other legitimate reason no longer adheres to it. Another example may be when an applicant gives evidence that the sole witness for the Crown upon which the charges are based has died so that there is no prospect of a conviction. In such circumstances, all other things being equal, it would be open to a judge hearing a release application or its equivalent to form a view that it would be inappropriate to continue to detain an applicant on remand pending trial or, by analogy with the present case, insist that he or she remain on bail subject to conditions.

11. At a slight remove from such circumstances, judges are regularly required to form what must necessarily only be tentative views about the strength or otherwise of the prosecution case. It is an ever present but regrettable fact that, in the absence of what was formerly a presumption in favour of bail, such frail assessments that ultimately turn out to be completely erroneous can result in obvious injustice or unfairness to the applicant concerned. Such is the unfortunate nature of the discretionary considerations touching the grant or the refusal of bail.

12. In the present case, in summary, Mr Gamage says, on the basis of what he contends is unequivocal evidence or unambiguously favourable legal principle establishing that the charges against him are ill-conceived and doomed to fail, but without giving the Crown a proper opportunity to test that “evidence” by cross-examination or otherwise, that I should in effect usurp the role of the jury or, in advance of that, the role of the Local Court when dealing with his application for a permanent stay. Having done so, Mr Gamage says that I should then revoke his bail conditions because the outcome of his trial is a foregone conclusion. I cannot agree to that course.

13. Mr Gamage's propositions, if accepted, would extend the scope of my role beyond making decisions based on uncontested facts or the provision of a ruling made upon the exercise of an available discretion. The present application is not the proper vehicle for any such course. It is instead a barely disguised application for an expedited hearing of his application for a permanent stay of the proceedings against him. As Fagan J observed in the course of hearing and granting Mr Gamage’s application for bail on 8 September 2021, that application was neither the appropriate time nor place to consider it. That position is still the same today.

14. Mr Gamage will next be before the Local Court in June 2022 when consideration will be given to matters raised by s 91 of the Criminal Procedure Act 1986 and related concerns. Mr Gamage will then have his opportunity to promote the issue of whether the case against him is factually or legally viable and whether to pursue his application for a permanent stay. Until then, with one exception, I do not consider that any of his bail conditions should be varied or revoked.

15. By reason of the manner in which Mr Gamage’s release application proceeded before me, the reasonableness of or the necessity for a condition that he report daily to the police was not adequately ventilated. When the matter was before Fagan J, the Crown identified and relied upon a concern that Mr Gamage was a risk of flight, although I note in that respect that his Honour did not impose a surety condition to ameliorate that alleged risk. That being so, and having regard to the character of the offending alleged, it would appear now on one view that a daily reporting requirement might be considered to be unreasonably onerous. I would in these circumstances be prepared, if thought appropriate, to hear the parties’ more specifically targeted submissions on any modified application that Mr Gamage may wish to make in that respect.

16. Otherwise, I consider that Mr Gamage’s application that all of his bail conditions be revoked should be refused.

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Decision last updated: 02 March 2022