Gamage v Riashi & Anor [2024] NSWSC 975

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 (First and Second Defendants) Solicitor for Director of Public Prosecutions (Third Defendant) File Number(s): 2023/228182; 2023/188383; 2023/204279 Publication restriction: None