Solicitors:
Crown Solicitor's Office (Second Defendant)
Solicitor for Public Prosecutions (NSW) (Applicant)
File Number(s): 2023/228182
[2]
JUDGMENT
HIS HONOUR: By a notice of motion filed on 4 October 2023, the New South Wales Director of Public Prosecutions (the applicant) seeks an order that she be joined as a defendant in an action commenced by way of a summons filed by the plaintiff, Don Gamage, on 18 July 2023 (the summons), in which the defendants are Michael Riashi (the first defendant), who is an investigator in the employment of the Independent Commission against Corruption, known as "the ICAC", and the ICAC itself (the second defendant). The applicant also seeks an order for costs of the application.
At the hearing of the application on 25 October 2023, which came before me as the Duty Judge, I made the orders sought and reserved my reasons, which I now publish.
In the summons, the plaintiff sought leave to appeal certain orders that had been made by Thomas LCM on 26 and 28 June 2023, in a hearing of a prosecution of the plaintiff for two sets of offences, being alleged dishonesty offences contrary to provisions of the Crimes Act 1900 (NSW) and offences against provisions of the Independent Commission Against Corruption Act 1988 (NSW). Both sets are presently stood over for mention and hearing dates in 2024.
Gamage v Riashi [2023] NSWSC 1400 | Case summary | Zoe
The orders made by Thomas LCM which are the subject of the summons were an order refusing an application by the plaintiff to permanently stay both sets of proceedings against him, and an order admitting into evidence certain recordings of a telephone conversation in which the applicant was a party. The proceedings were, and are, being prosecuted by the applicant.
The plaintiff was not legally represented in his opposition to the application by the applicant to be joined as a defendant to the summons. An affidavit by the solicitor who is acting for the applicant in these proceedings, Helen Langley, sworn on 3 October 2023, was read on the hearing of this application without objection. An affidavit by the plaintiff, affirmed on 20 October 2023, was objected to in part. I note that part of its content is essentially submissions and I take those parts into account on that basis. Annexed to both affidavits are documents that provide background to the summons and notice of motion. Both parties handed up written submissions.
The criminal proceedings against the plaintiff were first listed in the Local Court on 3 December 2020. On 10 November 2022, Rothman J handed down an ex tempore judgment that, regrettably, was only partly recorded, concerning a challenge to certain orders made by the Registrar. In the course of the judgment, his Honour made observations concerning ss 9(4) and 10(1) of the Director of Public Prosecutions Act 1986 (NSW) (the DPP Act), as to whether the applicant had complied with legislative obligations in purporting to take over the prosecution of the plaintiff from the ICAC. In relation to this issue, his Honour said:
"I make it clear I am not making final decisions on the issues that are to be decided; these are matters that are raised in the substantive proceedings. It is at least arguable that, as a consequence of these provisions, the prosecutor in the proceedings is still Mr Riashi. Moreover, if there is an implication in the Independent Commission Against Corruption Act 1988 (NSW) prohibiting the commencement of criminal proceedings otherwise than through the DPP, it may be that the proceedings that were commenced by Mr Riashi did not validly commence proceedings at all. I am stating these only to inform the parties that these are arguable matters. I do not put it any higher than that."
In her affidavit, Ms Langley stated:
"On 11 November 2022, I sent Michael Riashi, the Independent Commission Against Corruption investigator, an email confirming that the Director had taken over the prosecution."
A copy of a purported email dated 11 November 2022, that is, the day after Rothman J handed down his judgment, was annexed to the affidavit. After identifying the proceedings, Ms Langley stated:
"I am writing to confirm, as you would have previously understood, that the Director of Public Prosecutions (NSW) has taken over the prosecution in each of these matters, and that a legal representative from this Office has appeared on behalf of the Director as prosecutor at each listing of the matters since 3 December 2020."
Following the plaintiff filing the summons, Ms Langley caused a letter to be sent to the plaintiff from the Solicitor for Public Prosecutions, Craig Hyland, dated 1 September 2023, in which it was noted that the plaintiff had joined the applicant in two earlier Supreme Court proceedings arising from this matter. The plaintiff was asked to consent to the applicant being added to this proceeding, as well.
Ms Langley emailed the plaintiff on 20 September 2023, noting that she had not received a reply to the letter of 1 September 2023. She stated that if a response or consent was not forthcoming, the applicant proposed to file a notice of motion seeking that she be joined to the proceeding, adding: "Costs of the motion may be sought".
The plaintiff replied by an email dated 22 September 2023, in which he stated that he did not consider that the applicant had complied with her legislative obligations to take over the prosecution. He said:
"That is by all means, THUGGERY. [The applicant's] attitude is 'It should be either my way or highway'."
The plaintiff further stated that he was writing to the Premier and Attorney General of New South Wales, requesting that a Royal Commission be established to investigate "a range of criminal activities the Crown and the judiciary have committed so far".
On 6 October 2023, the plaintiff wrote to Ms Langley, making a "demand" that she file and serve:
"1. An affidavit of Michael Riashi confirming that he received your email of 11 Nov 202[2] and a hard copy of the received email attached.
2. Printed metadata of your email (sent on 11 Nov 202[2])".
The plaintiff stated that he reserved his position in relation to the printed metadata of the received email, and if the material sought was provided, he would consent to the joinder of the applicant to the summons.
Ms Langley replied on the same date, stating that the applicant did not intend to file any further material and asking the plaintiff to indicate before 13 October 2023 whether he would consent to the joinder. A solicitor from the Crown Solicitor's Office who is acting for the second defendant wrote to the plaintiff indicating that it did not intend to file further material, stating:
"As Ms Langley notes below, under s 161(1)(d) of the Evidence Act 1995 (NSW), it is presumed that the email …. was received at the destination to which it appears to have been sent, being Mr Riashi's inbox."
By email dated 10 October 2023, the plaintiff refused to consent to the joinder application, renewed his request for the documents sought by him in his email of 6 October 2023 and added a further request for the "printed metadata of the email received".
By correspondence of the same date, the solicitor for the second defendant replied, declining the plaintiff's requests and reiterating its earlier position.
At the outset of the hearing of this application, the plaintiff sought an adjournment of one week so that he could issue subpoenas upon Ms Langley and Mr Riashi to be cross-examined on the email. He submitted that it was apparent that Ms Langley's email to Mr Riashi, dated 11 November 2022, was a "fabrication". He said the evidence that the email was a fabrication, or could be a fabrication, was twofold.
Firstly, that the applicant's written submissions rely upon s 161(1) of the Evidence Act and that the metadata of the email as forwarded and received had not been provided. The plaintiff said: "On that basis I formed the opinion that email is a fabrication".
Secondly, the fact that the applicant's written submissions advance an alternative argument, to the effect that it was of no consequence to the motion if s 10(1) of the DPP Act was not complied with, having regard to a judgment of this Court to the effect that "the Director's functions are not affected by a failure to notify or inform in relation to the matter", citing AW v State of New South Wales [2005] NSWSC 543 at [49], [59].
It was pointed out to the plaintiff that it is routinely the case that litigation advocates present alternative submissions in support of a proposition and that no concession is to be inferred from that technique.
The plaintiff's application for an adjournment was refused, on the basis that there was no evidentiary grounding for the plaintiff's belief that the email was a fabrication and there was no legitimate forensic purpose in requiring Ms Langley and Mr Riashi to be subpoenaed to give evidence on that issue.
On the hearing of the application, the plaintiff said:
"… I will consent to the joinder order if your Honour is satisfied that it is a genuine email. Having said that I keep my objection. So I am not - I still maintain that it is a fabrication."
Having regard to s 161(1)(d) of the Evidence Act, I am satisfied there is no evidence that rebuts the presumption that the email in question was sent to and received by Mr Riashi.
In any event, I note that the applicant has appeared in and prosecuted the matter from the date that it was first listed in the Local Court and is directly affected by the relief sought: Pt 51B, r 10 of the Supreme Court Rules 1970 (NSW); and r 59.3(2) of the Uniform Civil Procedure Rules 2005 (NSW). I also note that the plaintiff is not disadvantaged by the joinder, since the first and second defendants remain parties to the action.
On the issue of costs, I note that the plaintiff was put on notice that costs may be sought if he did not consent to the application. I take into account the substance of his case which, in spite of the fact that he was not legally represented, should have been clear to him was without a reasonable evidentiary foundation.
Accordingly, I made orders for the joining of the applicant to the summons filed on 18 July 2023 and an order that the plaintiff pay the costs of the motion, as agreed or determined.
[3]
Amendments
17 November 2023 - [5]: Typographical error corrected
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Decision last updated: 17 November 2023