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 JUDGMENT 1. HIS HONOUR: The plaintiff seeks to overturn a Local Court decision. On 8 February 2024 each of the three matters were listed before the Court. The plaintiff submitted that only matter no. 2023/228182 was listed for hearing and the other two matters were only listed for mention. The hearing proceeded on that basis, although it would seem that all three matters were listed, and they cover the same territory. The plaintiff was self-represented. 2. The proceedings in 2023/204279 is a summons seeking leave to appeal from the whole of the decision by the Local Court on 5 June 2023 pursuant to the terms of s 53(3) of the Crimes (Appeal and Review) Act 2001 (NSW). It moves the Court to make orders setting aside a subpoena issued by the applicant, Mr Gamage, which seeks the production of documents by the second respondent, Mr Riashi. 3. The subpoena seeks the production of an affidavit filed seemingly on behalf of the Director of Public Prosecutions (hereinafter "DPP") or the Police on which a warrant under the Surveillance Devices Act 2007 (NSW) was issued. The obvious purpose of the subpoena is to establish the basis upon which a surveillance devices warrant, which was issued by McCallum J (as her Honour then was), was sought. 4. Proceedings 2023/188383 was also commenced by summons purportedly seeking "mandamus" requiring the Local Court to issue subpoenas to a number of persons to give evidence; a declaration as to what is in the interests of justice, being the calling of oral evidence; an order in the nature of prohibition, prohibiting the Local Court from setting aside any of the aforesaid subpoenas; an order that the DPP file and serve on the plaintiff, a detailed answer to each allegation made in the application for a stay or dismissal; an order that the Local Court transfer the venue of the matter from the Downing Centre to Bankstown Local Court; and in the alternative, a declaration that the matter be moved into the Supreme Court, purportedly pursuant to a number of rules. 5. The matter that the plaintiff says was listed for hearing, being matter 2023/228182, is a summons seeking leave to appeal an interlocutory decision of the Local Court. The grounds of appeal make clear why the subpoena was issued and the basis upon which it is sought to be agitated. It also makes clear why "mandamus" and other orders are sought in the two other proceedings. 6. The summons for leave to appeal seeks leave to appeal the order made by his Honour Thomas LCM on 26 June 2023. His Honour dismissed an application by the plaintiff in these proceedings for a stay of the charges filed against him and/or summary dismissal of the charges. 7. The summons seeking leave to appeal pursuant to the terms of s 53 of the Crimes (Appeal and Review) Act was filed on 18 July 2023. The summons also seeks certiorari in relation to the decision not to stay and/or not to dismiss the debt proceeding; a declaration that the charges preferred against the plaintiff be stayed permanently; in the alternative, an order or declaration that the charges be dismissed; a declaration that the recording of a telephone call made by officers of the Independent Commission Against Corruption (hereinafter "ICAC") on 16 December 2009 was illegal and inadmissible (presumably in the Local Court proceedings); and an order in the nature of certiorari that the decision of the Local Court made on 16 December 2009 to admit into evidence the telephone call referred to above, be quashed. 8. The summons for leave to appeal also seeks declarations that an employee of ICAC does not have the power to prosecute a person; that the Criminal Procedure Act 1986 (NSW) does not empower an employee of ICAC to prosecute a person (if that be different from the earlier declaration); a declaration that the Telecommunications (Interception & Access) Act 1979 (Cth) covers the field of telephonic power of the Commonwealth and that a warrant issued under the Surveillance Devices Act does not empower persons to issue a warrant to record telephone conversations, even in circumstances where the listening device records everything said in a room and the telephone conversation is broadcast on loudspeaker. 9. The summons seeks interlocutory orders for the Court to make witnesses available, however, the last-mentioned matter was not the subject of agitation before the Court. Legislation 1. The Court treats the application for certiorari to be an application for an order in the nature of certiorari pursuant to the terms of the Supreme Court Act 1970 (NSW). By operation of s 22 of the Supreme Court Act, the Court, which is now in its two hundred and first year, was continued as originally established by Royal Prerogative in 1824. Its jurisdiction, by virtue of s 23 of the Supreme Court Act, is all that "may be necessary for the administration of justice in NSW". Before the enactment of s 69 in its current form that included the power to issue certiorari. The provisions of s 69 of the Supreme Court Act affect that jurisdiction and prohibit the issuing of a writ and, in lieu thereof, require the Court to issue orders in the nature of certiorari. The terms of s 69 of the Supreme Court Act are as follows: "69 Proceedings in lieu of writs (1) Where formerly— (a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act— (c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ, and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. (2) Subject to the rules, this section does not apply to— (a) the writ of habeas corpus ad subjiciendum, (b) any writ of execution for the enforcement of a judgment or order of the Court, or (c) any writ in aid of any such writ of execution. (3) The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings— (a) jurisdiction to quash the ultimate determination of the court or tribunal, and (b) if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. (5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision." 1. Further, the Court is granted jurisdiction to issue declarations, the provisions for which are in s 75 of the Supreme Court Act and are as follows: "75 Declaratory relief No proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not." 1. The capacity to appeal a decision of the Local Court, in relation to criminal proceedings is governed by the provisions of Division 1 of Part 5 of the Crimes (Appeal and Review) Act. It is appropriate to recite the provisions of ss 52, 53, 54, 55 and 57. Those provisions are in the following terms: "52 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone. (2) An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court. 53 Appeals requiring leave (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves— (a) a question of fact, or (b) a question of mixed law and fact, but only by leave of the Supreme Court. (2) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (3) Any person against whom— (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (4) An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court. Subdivision 2 Determination of appeals 54 Determination of applications for leave to appeal (1) The Supreme Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal. (2) Leave to appeal must not be granted in relation to an application with respect to an environmental offence unless the Supreme Court is satisfied that the appeal is likely to require the resolution of a matter relating to constitutional law or a matter of general application. (3) If the Supreme Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just. (4) If the Supreme Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings. 55 Determination of appeals (1) The Supreme Court may determine an appeal against conviction— (a) by setting aside the conviction, or (b) by setting aside the conviction and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination in accordance with the Supreme Court's directions, or (c) by dismissing the appeal. (2) The Supreme Court may determine an appeal against sentence— (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by setting aside the sentence and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination, in relation to sentence, in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. (3) The Supreme Court may determine an appeal against an order referred to in section 53 (3) (a) or (b)— (a) by setting aside the order and making such other order as it thinks just, or (b) by dismissing the appeal. … 57 Appeals requiring leave (1) The prosecutor may appeal to the Supreme Court against— (a) a sentence imposed by the Local Court with respect to an environmental offence, or (b) an order that has been made by a Magistrate in relation to a person in any committal proceedings, or (c) an interlocutory order that has been made by the Local Court in relation to a person in summary proceedings, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (2) An application for leave to appeal must be made within such period after the date of the sentence or order as may be prescribed by rules of court." 1. The plaintiff has not been convicted or sentenced by the Local Court. As a consequence, the provisions of ss 52 and 53, other than s 53(3) of the Crimes (Appeal and Review) Act, do not apply. Leave to appeal is required and an appeal may be taken only on a ground that involves a question of law alone. 2. Pursuant to the terms of s 54(4) of the Crimes (Appeal and Review) Act, if the Court were minded to grant leave to appeal, the Court could then immediately hear the appeal and determine it. The hearing of the application proceeded on the basis that the Court would hear the application for leave and the appeal simultaneously. Background 1. It is necessary to recite some facts, although very few are needed to deal with the issues before the Court. The plaintiff, Don Gamage, is being prosecuted in the Local Court for a series of offences which can be described, generally, as corruption offences. The Court Attendance Notices ("CANs") refer to offences of: corruptively offering a bribe; giving evidence at a compulsory examination conducted by ICAC that was false in a material particular (on two different occasions); wilfully making a false statement; hindering an officer of ICAC in the exercise of functions; and publishing a statement, knowing it to be false, for the purpose of obtaining a financial advantage (8 counts). 2. At the heart of the allegation and criminal charges is that the plaintiff offered an officer a bribe of $15,000 in order to obtain employment in relation to a pending recruitment position at Woollahra Municipal Council; that he lied about that bribe in evidence; and that he lied on a number of occasions about his past employment as a Chief Engineer. At the initial hearing, one of the charges was withdrawn, but that makes little or no difference to the issues that arise in this appeal. 3. In the course of evidence before ICAC, on 31 May 2010, Mr Gamage referred to a request by an officer for a bribe of $15,000 to which, according to that evidence, Mr Gamage replied: "That is a big bribe". 1. The Crown sought to rely upon a recording of a conversation between the officer and Mr Gamage, which was sourced from a telephone and broadcast in a room and recorded in the room, during which Mr Gamage admitted making an offer of payment to the officer. Mr Gamage, apparently, challenged the authenticity of the recording and denied that the conversation had occurred. 2. Mr Gamage applied to the Local Court for the stay of proceedings and/or that all charges be dismissed. He did so on the grounds that ICAC did not have the power to prosecute; Mr Riashi did not have delegated authority to prosecute; that the filing of the CANs was fraudulent; that there was a malicious prosecution and ongoing conspiracy between employees of ICAC, the Office of the DPP and the Local Court; there were a number of abuses of power; and evidence had been the subject of tampering. 3. In the course of the investigation of the bribery charge, a warrant was obtained under the Surveillance Devices Act, as earlier indicated, issued by McCallum J (as her Honour then was). [1] As can be seen from the terms of the warrant, it authorises a surveillance device on the body of a person for the purpose of recording conversations between the person and Mr Gamage. It issued on 16 December 2009 and operated from that date until 5.20pm on 22 December 2009. 4. A listening device on the body of the identified person was utilised to record a conversation between the said person and Mr Gamage which conversation occurred over a telephone or originated from a telephone and the voice of Mr Gamage was broadcast on loudspeaker into the room in which the person and the listening device were located. Consideration 1. It is unnecessary to recite the submissions of each of the parties as they are obvious from that which has already been stated in these reasons or that which now follows. First, the plaintiff, Mr Gamage, argues that the Surveillance Devices Act as State legislation, does not apply to those matters governed by the Telecommunications (Interception and Access) Act. For that purpose, there is, on the file, a Notice under s 78B of the Judiciary Act 1903 (Cth). However, it is unclear whether the s 78B Notice has been served and whether it has been the subject of any response. 2. Notwithstanding the absence of evidence relating to a response to the Notice under s 78B of the Judiciary Act, the Court is entitled to proceed to deal with the issue. This is because, as will be explained briefly, no true constitutional issue arises. 3. No party in the proceedings suggests that the Telecommunications (Interception and Access) Act is invalid. That which Mr Gamage seeks to agitate is that the Telecommunications (Interception and Access) Act covers the field and renders the Surveillance Devices Act, to the extent that it is inconsistent either as a result of the Commonwealth Act covering the field or by direct inconsistency, inoperative. [2] The application of s 109 of the Constitution to a particular State Act is not a question arising under the Constitution. It is a question of statutory construction of the Commonwealth and State Act respectively. 4. The Telecommunications (Interception and Access) Act proscribes [3] the interception or the authorisation or permission granted to conduct an interception or the doing of any act that will enable a person to intercept a communication passing over a telecommunication system. Section 5F of the Telecommunications (Interception and Access) Act defines the circumstances in which a communication passes over a telecommunication system as being the period starting from the time a communication is sent or transmitted by the person sending the communication and continues until it becomes accessible to the intended recipient of the communication. 5. The provisions of s 6 of the Telecommunications (Interception and Access) Act defines the interception of a communication as listening to or recording (by any means) a communication in its passage over the telecommunication system without the knowledge of the person making the communication. In other words, once the communication becomes accessible to the intended recipient, it is no longer passing over the telecommunication system and listening to it or recording it does not involve intercepting it and, consequently, is not prohibited by the provisions of s 7 of the Telecommunications (Interception and Access) Act. 6. To put it in analogous terms, if an intended recipient of the telephone communication is listening on a loudspeaker to a communication from another, persons in the same room who may also hear the communication are not in breach of the law and, in particular, are not in breach of s 7 of the Telecommunications (Interception and Access) Act. The communication is not being intercepted. 7. Moreover, the persons listening on the loudspeaker could, in the case of a shorthand reporter, transcribe the communication without breaching the law and another person in the room could give direct evidence of the content of the conversation, assuming that, for present purposes, the communication is admissible in the proceeding, of the terms of the communication. 8. No party in these proceedings suggests that the Surveillance Devices Act allows a warrant for the purpose of intercepting a telephone communication inconsistently with the provisions of s 7 of the Telecommunications (Interception and Access) Act. Further, as the foregoing analysis makes clear, listening to a conversation (or recording it) otherwise than during its communication over the system, i.e. by listening to its loudspeaker broadcast or recording its loudspeaker broadcast, is not prohibited by the provisions of s 7 of the Telecommunications (Interception and Access) Act. 9. On the other hand, the Surveillance Devices Act prohibits the installation of a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party or to record a private conversation to which the person is a party. [4] To do so is a criminal offence punishable by 5 years imprisonment and a fine. 10. However, the terms of s 16(1) of the Surveillance Devices Act allows an eligible Judge to issue a warrant under Part 3 of the relevant Act in circumstances where it is subject to an application which establishes, on reasonable grounds, that a relevant offence has been, is being or is about to be committed; there is an investigation into that offence or is likely to be an investigation; and the use of the surveillance device, to which the warrant relates, is necessary for the purpose of that investigation to enable evidence to be obtained. 11. The application for a surveillance device warrant is required to be in the form of an affidavit which includes certain particulars. Those particulars include: the grounds upon which the warrant is sought; the details of any alternative means of obtaining the evidence; information which identifies persons who may be incidentally recorded by the surveillance device; and other particulars. [5] Ordinarily, the affidavit supporting the issuing of the warrant or applying for the warrant will specify how the listening device will be used. There is no evidence to suggest that the ordinary practice was not followed in the issuing of this warrant. 12. In other words, that which was done in relation to the recording of the conversation, as it was heard in the room into which it was broadcast, was no different from the transcription of the words heard by a shorthand reporter and is permitted under a warrant issued under the Surveillance Devices Act. No inconsistency arises and there is no prohibition under the Telecommunications (Interception and Access) Act on the recording of the communication in the way it was recorded. 13. As a consequence, the issue of the "invalidity" of the warrant fails. Were it otherwise, different questions would necessarily arise. For example, it was asserted by the plaintiff that only "Federal Judges" could issue a warrant under the Telecommunications (Interception and Access) Act. The issuing of a warrant, at least in the federal jurisdiction, is a task given to persona designata. It is not, ordinarily, the exercise of judicial power. [6] 14. The officers who are eligible to grant warrants under the Commonwealth Act extend to many persons who are not Federal Judges. Most of such warrants are issued by members of the Administrative Appeals Tribunal and some, if not most, State Judges are eligible officers under the Commonwealth Act. If, as I suspect, McCallum J (then a State officer) was an eligible officer or person authorised to issue warrants under the Commonwealth Act, nice questions would arise as to whether, notwithstanding the use of the wrong statute, the warrant was still valid. 15. More importantly, assuming against the determination above, that the recording of the conversation in the manner it was recorded, was "unlawful", the issue does not resolve, necessarily, the question in favour of the plaintiff. The provisions of s 138 of the Evidence Act 1995 (NSW) allow the admission into evidence of unlawfully obtained evidence if the "desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained" in the manner that it was. 16. The probative value of the alleged admissions, if they were to the effect alleged by the prosecutor, is extremely significant. It would be wholly inconsistent, if it were to be construed in the manner suggested by the prosecutor, with a proposition or defence of the plaintiff that he did not offer a bribe but the officer requested one. It is almost impossible to imagine that in the exercise of the discretion under s 138, such evidence would not be admitted. 17. Nevertheless, those latter matters are incidental. The recording of the conversation in the manner executed by the officer from ICAC pursuant to the warrant issued under the Surveillance Devices Act was not unlawful and not illegal and, subject to any other discretion as to the admissibility of evidence, was required to be taken as lawful and required to be admitted by the learned magistrate below. 18. The next aspect is the capacity of an officer of ICAC to prosecute an offence of the kind here prosecuted. The plaintiff submits that the statute under which ICAC operates prohibits officers of ICAC, or the organisation itself, from prosecuting offences. Such a submission is based in part on the plaintiff's view of the proper construction of the Independent Commission Against Corruption Act 1988 (NSW) (hereinafter "ICAC Act") as understood as a result of the comments in the Second Reading Speech for that statute. The principal functions of ICAC are prescribed by s 13 of the ICAC Act and they include the investigation of any serious allegation or complaint of corrupt conduct, the communication to appropriate authorities of the results of its investigations and the co-operation with public authorities. The provision does not include a principal function being the conduct of criminal proceedings arising from any investigation. 19. Other functions of the Commission include those prescribed by s 14 of the ICAC Act and include the gathering and assembly of evidence that may be admissible in the prosecution of a person in connection with corrupt conduct and "to furnish such evidence to the Director of Public Prosecutions"; the gathering and assembly of evidence that may be admissible in relation to corruption relating to the Electoral Commission; and furnishing, either during or after the investigations have been completed, other evidence obtained in the course of its investigations to the Attorney General or to the appropriate authority. 20. The plaintiff relies on the proposition that those other functions relate expressly to furnishing evidence to the DPP and do not include a function of instituting a prosecution. 21. The plaintiff has not referred to any express provision prohibiting the taking of proceedings, including criminal proceedings arising from an investigation. Nor has the plaintiff referred to any provision expressly granting power to another person or body to prosecute offences arising from any such investigation. 22. As a matter of fact, the proceedings before the Local Court are being conducted by the DPP, as a consequence of which, it is a necessary inference that information obtained by ICAC in its investigation has been forwarded to the DPP. Nevertheless, the plaintiff submits that the absence of a provision, in express terms, permitting the commencement of proceedings means that the commencement of proceedings by the CAN by an officer of ICAC was impermissible and the CAN is invalid. 23. The plaintiff relies upon the comments of the then Minister for Justice in the Second Reading Speech to the effect that ICAC will not have the power to conduct prosecutions for criminal offences or disciplinary offences or to take action to dismiss public officials. [7] The foregoing comment made by the then responsible Minister, Mr Nick Greiner, as the Premier of NSW, in the Second Reading Speech, was said after making clear that ICAC would have the power to investigate complaints; to seek injunctions from the court; to make applications under the confiscation provisions relating to criminal proceedings or conduct; to hold hearings; to issue subpoenas and summonses; and, to seek and obtain listening device warrants. The then Minister said: "The proposed Independent Commission Against Corruption will not have power to conduct prosecutions for criminal offences or disciplinary offences, or to take action to dismiss public officials. Where the Commission reaches the conclusion that corrupt conduct has occurred, it will forward its conclusion and evidence to the Director of Public Prosecutions, department head, a Minister or whoever is the appropriate person to consider action. In doing so the Commission can make recommendations. The person to whom the matter is referred is not required to follow the recommendation. However, the Commission can acquire a report back on what action was taken…it is important to note that the Independent Commission will not be engaging in the prosecutorial role. The Director of Public Prosecutions will retain his (sic) independence in deciding whether a prosecution should be instituted." [8] 1. The ICAC Act, as it relevantly was, contained no express prohibition on taking prosecutions. The Second Reading Speech refers to a lack of power, perhaps as a result of there being no express provision to take prosecutions or commence them. 2. The provisions of s 34 of the Interpretation Act 1987 (NSW) allow the use of extrinsic material in the interpretation of a statute if that material "is capable of assisting in the ascertainment of the meaning of the provision" in order to "confirm that the meaning of the provision is the ordinary meaning conveyed by the text" or "to determine the meaning…if the provision is ambiguous or obscure…or if the ordinary meaning conveyed leads to a result that is manifestly absurd or is unreasonable". That is not the manner in which the extrinsic material is sought to be used by the plaintiff. 3. The provisions of ss 14, 14A, 173 and 174 of the Criminal Procedure Act are in the following terms: "14 Common informer A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons. 14A Proceedings for offences commenced by officers of ICAC or LECC (1) An officer of ICAC does not have the power to commence proceedings for an offence unless the Director of Public Prosecutions has advised the Independent Commission Against Corruption in writing that the proceedings may be commenced by an officer of ICAC. (2) An officer of LECC does not have the power to commence proceedings for an offence unless the Director of Public Prosecutions has advised the Law Enforcement Conduct Commission in writing that the proceedings may be commenced by an officer of LECC. (3) For the purposes of subsections (1) and (2), the Director of Public Prosecutions may liaise with the Independent Commission Against Corruption or Law Enforcement Conduct Commission, but is to act independently in deciding to advise that proceedings for the offence may be commenced. (4) In this section— officer of ICAC means a person acting in the capacity of a Commissioner, an Assistant Commissioner or officer of the Independent Commission Against Corruption. officer of LECC means an officer of the Law Enforcement Conduct Commission (within the meaning of the Law Enforcement Conduct Commission Act 2016). 173 Commencement of proceedings by police officer or public officer If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division. 174 Commencement of private prosecutions (1) If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division. (2) A registrar must not sign a court attendance notice if— (a) the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or (b) the registrar is of the opinion that the notice is not in the form required by or under this Act, or (c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice. (3) If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by a Magistrate on application by the person. 1. Section 14 of the Criminal Procedure Act makes clear that a prosecution in respect of any offence under any statute "may be instituted by any person" unless there is an express conferral of the power to commence proceedings on a specified person or class of persons. There is no such express conferral in relation to prosecutions arising out of an investigation by ICAC. 2. The provisions of s 14A of the Criminal Procedure Act, which prohibit an officer of ICAC commencing proceedings without the advice of the DPP approving such commencement, was inserted by the Courts and Other Justice Portfolio Legislation Amendment Act 2015 (NSW). The proceedings in the Local Court by way of committal occurred in 2011 and the CANs were, subject to an argument to be dealt with later in these reasons, filed on 17 October 2011. 3. As a consequence, the provisions of s 14A do not apply to the proceedings now before the Court and then before the Local Court or continuing before the Local Court. As a matter of fact (which itself creates difficulties in relation to this application for appeal) the officer of ICAC is a public officer being an officer defined as a public officer pursuant to the terms of s 3(1) of the Criminal Procedure Act. 4. Therefore, the officer of ICAC, being a public officer within the meaning of the Criminal Procedure Act and not constrained by the then non-existent provisions of s 14A of the Criminal Procedure Act, was a "person" who, pursuant to the terms of s 14 of the Criminal Procedure Act, may institute proceedings in the absence of an express provision conferring the right to institute proceedings on a specified person or class of persons. There being no such express conferral, any person, including the officer of ICAC, may institute proceedings of that kind. 5. Further, as a result of the provisions of s 173 of the Criminal Procedure Act, the officer of ICAC, being a person and able to institute proceedings under s 14 of the Criminal Procedure Act, may commence proceedings "by issuing a CAN and filing the notice". [9] For the purposes of s 3(1) of the Criminal Procedure Act, Regulation 101 of the Criminal Procedure Regulation 2010 prescribes the ICAC as a public body. 6. The plaintiff asserts that the CANs were a hoax and/or a fabrication. First, the plaintiff asserts that no file was created as a consequence of the filing of the CAN. Secondly, the plaintiff asserts that there is no seal on the CAN of which the plaintiff has copies. Thirdly, as I understand the submission, the plaintiff asserts that the date stamp with the words "Local Court" is a forgery. 7. At least one of the CANs is date stamped "Received, 17 October 2011, Local Court, Downing Centre, Level 4, Sydney". [10] The plaintiff asserts this is a forgery. There is no evidence to support this assertion. 8. The objection to the commencement of the proceedings on the basis that each CAN is a forgery, is a question of fact, not a question of law and could not be the subject of an appeal under s 53 of the Crimes (Appeal and Review) Act. Nevertheless, the Court does not accept that the CAN or any of them is a forgery or a hoax and the plaintiff has failed, at the outset, to prove any such assertion. 9. Next, it is submitted that the officer of ICAC did not have the delegated authority to prosecute. The assumption underpinning this submission is that the officer required delegated authority to proceed under s 14 of the Criminal Procedure Act. No such delegated authority is required. 10. If the officer were not to have delegated authority to prosecute then it may be that the commencement of the proceedings is not a commencement by ICAC or may mean the officer was not acting in an official capacity. But it is unnecessary to determine that issue. Whether there exists delegated authority is a question of fact. 11. Nevertheless, the officer is, as earlier stated, a person capable of instituting proceedings under s 14 of the Criminal Procedure Act. The person who has instituted the proceedings is a "public officer" being an employee of the public service and also an employee of a body declared by the regulation to be a public body for the purposes of s 37(1) of the Criminal Procedure Act. As a consequence, the provisions of s 173 of the Criminal Procedure Act govern the commencement of the proceedings and the commencement is valid. The provisions do not require delegated authority to commence the proceedings in the manner suggested by the plaintiff. 12. Ground 4 of the appeal refers to a filing by another officer or employee, being a solicitor, of ICAC. This is a reference to the person who physically delivered the CAN to the Local Court. The point is misconceived. 13. Grounds 5, 6, 7 and 8 are, frankly, fanciful. They are assertions of fact relating to conspiracies, an abuse of process, abuse of power and an assertion that evidence was the subject of tampering. To the extent that they are allegations of some legal question, they have been dealt with in the other grounds. To the extent that they are not allegations of some legal error or of questions of law alone, they are assertions of fact for which, first, there is no evidence, and, secondly, are mere assertions or conjecture on the part of the plaintiff, and cannot be a ground of appeal. 14. Otherwise, the Local Court judgments or decisions are interlocutory decisions that do not deal with the final rights of the parties. The discretion to change the venue of proceedings, to admit evidence or to perform the other administrative tasks, sought to be impugned by the plaintiff, do not easily fit the description of that which the learned magistrate has a duty to perform. There is no other arguable jurisdictional error or error of law that would not be amenable to relief if the plaintiff were ever convicted. Orders in the nature of certiorari or mandamus should not issue. 15. The next issue is the orders that should be made by the Court in dealing with the matter. The Court has dealt with the merits or otherwise of the grounds raised by the plaintiff in the application for leave to appeal, except those that are not grounds on a question of law alone. It is an important public interest consideration that criminal proceedings, even those, or especially those, that are being dealt with summarily by the Local Court, ought not be the subject of fragmentation by interlocutory appeals. The Court has turned its face against such fragmentation. 16. These reasons have earlier recited the provisions of s 53 of the Crimes (Appeal and Review) Act. The only possible provision that could apply to this appeal is the provision contained in s 53(3) of the Crimes (Appeal and Review) Act, because the plaintiff has yet to be convicted or sentenced by the Local Court. 17. It is at least arguable that the refusal of the order staying the proceedings or dismissing the proceedings summarily, was "an interlocutory order...by the Local Court in relation to" the plaintiff. It was certainly made in summary proceedings. 18. An application for summary dismissal or for the staying of proceedings is an interlocutory application. The refusal to make an order is, generally, an order. [11] In this case, the effect of the determination by the learned magistrate was no more than that the proceedings would be heard. Nevertheless, the determination was a refusal to make an order and certainly was "in relation to the person in summary proceedings". [12] 19. As a consequence of the foregoing, I am prepared to accept, although there is some question in relation to it, that the provisions of s 53(3) of the Crimes (Appeal and Review) Act allow an application for leave to appeal on the grounds already identified and considered. Ordinarily, I would refuse leave on the basis of the fragmentation of the summary proceedings and given that if, ultimately, the plaintiff were convicted, there would be a right of appeal against that conviction, which would allow the raising of all grounds available. 20. However, given that these matters have now been the subject of full argument and they have been determined, it would seem to me preferable, in the interests of justice, to determine the matters. In those circumstances, the Court makes the following orders: 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. ********** Endnotes 1. Exhibit CB1, p 428. 2. The Constitution, s 109. 3. Telecommunications (Interception and Access) Act 1979 (Cth), s 7. 4. Surveillance Devices Act 2007 (NSW), s 7. 5. Ibid, s 17. 6. Hilton v Wells (1985) 157 CLR 57; [1985] HCA 16. 7. Exhibit CB2, p 974. 8. Ibid at 974-975. See, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 26 May 1988 at 677-678. 9. Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185, per Basten JA (with whom Grove and Hidden JJ agreed); Lazarus v Director of Public Prosecutions [2015] NSWSC 1116 (Garling J). 10. Exhibit CB1, p149. 11. R v Ludeke; ex parte Customs Officers Association of Australia (1985) 155 CLR 513 at 526 (Mason J); [1985] HCA 31; Onslow v Inland Revenue Commissioners (1890) 25 QBD 465; Peterborough v Wilsthorpe (1883) 12 QBD 1; Maxwell v Keun [1928] KB 645; R v Ludeke, ex parte COA (1985) 155 CLR 513 at 526 (Mason J); Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48. 12. Crimes (Appeal and Review) Act 2001 (NSW), s 53(3). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2024