HIS HONOUR: Mr Gamage is the subject of criminal charges currently proceeding in the Local Court. Those charges arise from an investigation by the Independent Commission Against Corruption (ICAC). He is the applicant on a notice of motion filed in this Court on 20 March 2023. That notice of motion is brought in the context of proceedings brought in this Court by Mr Gamage by way of summons. For convenience, I will refer to Mr Gamage as the plaintiff, although he is also, of course, the applicant on the motion I am determining.
The summons brought by the plaintiff seeks a declaration that the plaintiff is entitled to obtain a copy of the application for the surveillance device warrant that the defendant filed in this Court on 16 December 2009. The defendant referred to is, as I understand it, the first defendant, Mr Michael Riashi, who was, at the relevant time, employed by the ICAC as an investigator. The second defendant to the summons is the ICAC. On this application the plaintiff has appeared for himself. The second defendant appears represented by Mr Bhasin of counsel.
The first matter to be observed is that the summons is listed before this Court for hearing on 31 March of this year. That is some nine days from today. By his motion the plaintiff seeks the leave of this Court to issue various subpoenas. Firstly, he seeks leave to issue a subpoena compelling the first defendant to give oral evidence (prayer 1). Secondly, he seeks leave to issue a subpoena compelling Ms Jan Daly to give oral evidence (prayer 2). Thirdly, he seeks leave to issue a subpoena to the ICAC to produce the following:
1. a copy of the application for surveillance devices warrant filed in this Court by Jan Daly on 16 December 2009 on behalf of Michael Riashi (prayer 3(a)); and
2. the address for service or last known address of Jan Daly (prayer 3(b)).
In support of the application the plaintiff read his own affidavit of 18 March 2023. The second defendant read the affidavit of Christopher Frommer of 21 March 2023.
The requirement on the plaintiff to obtain leave to issue the subpoenas is the result of the operation of r 7.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Having regard to the approaching hearing date, there is a clear need for haste in resolving the plaintiff's motion. That is particularly so as one of the subpoenas seeks to obtain the last known address of Ms Daly. That, as I understand it, is to allow further inquiries to be made to establish the whereabouts of Ms Daly, with the result that if the plaintiff obtains the relief sought there may be very limited time available to him to serve the subpoena on Ms Daly.
The background to the matter can be very shortly stated. As I have already indicated, the plaintiff is facing criminal proceedings in the Local Court. Those proceedings involve some thirteen charges involving fraud, corruption, misleading the ICAC, and obstructing officers of the ICAC. Those offences are alleged to have been committed by him between 2006 and 2010. As I have already indicated, they arose following an investigation conducted by the ICAC. Part of the evidence before the ICAC, which is expected to be led in the Local Court proceedings, includes a recording of a telephone conversation between the plaintiff and Stephen Blackadder on 16 December 2009. That recording was captured by use of a recording device placed near Mr Blackadder's mobile phone, which he had placed on loudspeaker. On the prosecution case, that recording was obtained lawfully in accordance with a surveillance device warrant issued by McCallum J on 16 December 2009. That warrant was issued as a result of steps taken by two employees of the ICAC, the first defendant and Ms Daly. It is the plaintiff's position that Ms Daly and the first defendant wilfully misled McCallum J, leading to the issue of the warrant.
The principles with respect to the granting of leave to issue a subpoena to a self-represented litigant pursuant to r 7.3 of the UCPR were summarised by Hallen J in Wehbe & Anor v Giotopoulos [2022] NSWSC 1566 at [48]-[65] ("Wehbe"). Drawing from his Honour's reasons, I note the following propositions:
1. Whether leave to issue a subpoena ought to be granted to self-represented litigants, is a matter of discretion.
2. The leave requirement "is to protect the court's processes" by requiring the party seeking leave to demonstrate that each subpoena sought has a legitimate forensic purpose: see Wehbe (at [49]) citing Monteiro v the State of New South Wales [2022] NSWSC 148 at [14]-[15].
3. The question of establishing a legitimate forensic purpose has been the subject of much judicial consideration, but most relevantly at the present time is the decision of Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145. In that case, Bell P, as the Chief Justice then was, observed that (at [65]):
"It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are 'apparently relevant' or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist."
1. Material assistance is not limited to assistance to the party seeking the subpoena: Department of Planning, Industry and Environment v Blacktown City Council at [65]-[66]; Wehbe (at [49]) citing Monteiro v the State of New South Wales at [14]-[15].
2. In determining whether leave should be granted a court "must have regard to the various grounds on which a subpoena may be set aside": Wehbe (at [51]) citing Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183 at [5]-[6].
In resisting the plaintiff's summons, the second defendant relies on the principles with respect to the undesirability of the fragmentation of the criminal process, citing Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43. The point made by the second defendant is that there are proceedings in the Local Court and those proceedings should be allowed to proceed to their conclusion, without interference as a result of separate proceedings in this Court, leading to undesirable fragmentation. At the same time, the second defendant relies upon established principles relating to the unavailability of a collateral attack on a warrant in criminal proceedings. In other words, the second defendant points, on the one hand, to the undesirability of fragmentation, but on the other, points to the limitations on challenges to warrants within criminal proceedings. This is not the occasion to consider any tension between those submissions and how it might be resolved. That is because, in my view, the relief sought by the plaintiff can be determined without the need to consider those principles in any detail.
Turning to the particular items sought pursuant to the motion, it might be first noted that by prayer 3(a) the plaintiff seeks a copy of the application filed by Ms Daly, on behalf of the first defendant, for the warrant. The second defendant makes the point that, in doing so, the relief sought is essentially duplicative of the final relief sought in the substantive proceeding. The submission is made that, as such, it constitutes an abuse of process.
It is unnecessary for me to determine that submission. Clearly, however, there is an undesirability in my making an order which would essentially resolve the matter raised for hearing by the summons itself. Having raised the matter with both parties, both the plaintiff and the second defendant agreed that the appropriate course was to stand over that aspect of the motion to the date of the hearing of the substantive matter, to be heard with the substantive matter, if appropriate.
In coming to that position, I note the second defendant's undertaking to have the document available, in the event that the judge hearing the matter determines that it should be produced. I note the second defendant's position is that it would not be appropriate for the judge hearing the matter to view the document in order to "make an informed decision" as to the plaintiff's subpoena or the substantive relief. Again, that is not a matter that needs to be determined or considered by me but, having regard to the course I propose to take, and the second defendant's undertaking, it will be a matter that will be able to be determined by the judge hearing the summons.
The other subpoenas sought are in a different category. It is necessary to consider the basis upon which the plaintiff submits that he requires these witnesses. The plaintiff's primary contention is that the surveillance device warrant issued by McCallum J did not authorise the recording of the telephone call sought to be produced in evidence against him. It is his case that what was done involved the recording of a telecommunication to which the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA Act) applied. That being the case, he submits that a warrant was required pursuant to that Act and, in the absence of such a warrant, the call was illegally recorded.
That is a question which is to be resolved by a consideration of the ambit of the TIA Act and the particular question of whether it applied to the recording made. If the plaintiff is correct, and the TIA Act applied to the exclusion of the Surveillance Devices Act 2007 (NSW), there was no valid warrant for the recording of the call and the recording is illegally obtained evidence. Nothing that the first defendant or Ms Daly might say will affect that question. That, however, is not the full extent of the plaintiff's arguments. He raises a second contention, and that is that the first defendant and Ms Daly misled McCallum J leading to the issue of the warrant, with the result that, even if the warrant is lawful on its face, it was, at least, improperly, if not unlawfully, obtained.
Section 138 of the Evidence Act 1995 (NSW) deals with the exclusion of both illegally and improperly obtained evidence, and has potential application in this case, in the event that the plaintiff is able to discharge the onus on him to establish the evidence was improperly obtained. The foundation for the plaintiff's contention that his subpoenas would be for a legitimate forensic purpose, is sourced in the statement of the first defendant and the surveillance device warrant itself. In the statement of the first defendant, it is quite plain that the application for the surveillance device warrant was made on the understanding of the first defendant, through conversations with Mr Blackadder, that Mr Blackadder was expecting to speak with the plaintiff by telephone. I accept that, in the circumstances in which the application was made, the first defendant anticipated that that was the use to which the warrant would be put, that is, the recording of a telephone conversation. The next step is somewhat more difficult. The plaintiff contends that the first defendant and Ms Daly actively misled the issuing officer, McCallum J, as to that fact.
The basis upon which that contention is made is that the warrant specifies at paragraph 2(d) that: "the warrant authorises the use of the following surveillance devices on or about the body of Stephen Blackadder: One (1) listening device". The plaintiff points to the absence of any reference to the use of that listening device to record a telephone conversation. It is his submission that the words relating to the use of the surveillance device, "on or about the body of Stephen Blackadder", suggests that what was intended was the recording of a face-to-face conversation.
The immediate difficulty is that the words used in the warrant appear to be no more than an adoption of the words of s 21(1)(d) of the Surveillance Devices Act. Section 21(1) is in the following terms:
21 What a surveillance device warrant authorises
(1) A surveillance device warrant may authorise, as specified in the warrant, any one or more of the following -
(a) the use of a surveillance device on or in specified premises or a vehicle,
(b) the use of a surveillance device in or on a specified object or class of object,
(c) the use of a surveillance device in respect of the conversations, activities or geographical location of a specified person or a person whose identity is unknown,
(d) the use of a surveillance device on or about the body of a specified person.
The wording of the warrant is consistent with the issue of a warrant authorising the matter in s 21(1)(d).
Further, it is apparent on the evidence that the ICAC did not regard the use of a surveillance device warrant to record a telephone conversation in the manner in which it was done to be unlawful. That is, the ICAC appears to have proceeded on a footing inconsistent with the plaintiff's primary argument. It is entirely unclear, in those circumstances, what reason the defendant and Ms Daly would have to deliberately and actively mislead the authorised officer. Further, there is nothing to suggest that the authorised officer would have regarded it as material to know whether the recording was to be of an in-person conversation or a conversation over a telephone, subject, of course, to any question of it being an interception of a telephone communication to which the TIA Act would apply.
The foundation put forward by the plaintiff is such that I have real doubts as to whether the evidence of the second defendant and Ms Daly have the requisite apparent relevance. In one sense they do, but that is, to an extent, bound up in the question of the merits of the substantive application. That is, the plaintiff has an application seeking documents. The foundation on which he seeks those documents is the impropriety of the ICAC officers. The manner in which the ICAC officers conducted themselves, on that limited analysis, would appear, at face value, to be relevant. However, having regard to the fact that the subpoenas require leave to be issued and the need to establish legitimate forensic purpose, it seems to me that I cannot have regard to that question without, at least to some extent, having regard to the merit of the plaintiff's contentions with respect to the substantive question to be resolved on the summons. When I have regard to the matter more broadly, it does seem to me that there is a real question as to whether the plaintiff is in the territory of pure speculation.
There is another consideration relevant in this matter. As I have indicated, the plaintiff's contention is, firstly, that the TIA Act applied, and the recordings were illegally obtained and, under the TIA Act, inadmissible. The second contention is, failing that, the issuing officer was misled and the recordings were improperly obtained.
Whilst there are limits to the availability of a collateral attack on warrants in criminal proceedings, that does not necessarily exclude the plaintiff from arguing that a warrant, albeit valid on its face, was improperly obtained as a result of the conduct of the persons making the application for that warrant. In Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109, Basten JA, with whom the other members of the Court agreed, reviewed the authorities in relation to the scope of collateral challenges to warrants in criminal proceedings. His Honour concluded (at [52]), based on the various High Court authorities discussed by him, that a criminal trial court cannot consider the validity of a warrant based on the material placed before the issuing officer. In other words, it is not possible to go behind the warrant, although, of course, if the warrant is invalid on its face then evidence obtained in purported reliance on it will be illegally obtained. But his Honour noted that acceptance of the validity of the warrant does not rule out challenge to evidence obtained as a result, if the warrant was obtained as a result of impropriety. His Honour said (at [54]-[56]):
"54 No doubt, on an appropriate factual basis, an accused person could challenge the admissibility of evidence under s 138 of the Evidence Act on the basis there had been impropriety on the part of an applicant for a search warrant (for example, by relying on perjured testimony) or impropriety in the execution of the warrant. However, that is quite a different thing from challenging the validity of the warrant on conventional judicial review grounds. For example, the ground of improper purpose refers to the purpose of the decision-maker, not the purpose or conduct of the applicant.
55 In R v Simmons; R v Moore (No 3), Hamill J found support for a broader form of review in a passage from Flanagan v Australian Federal Police [50] suggesting that the trial judge had the power to exclude evidence where allegations of "bad faith and impropriety" have been made good. Hamill J noted that Flanagan was referred to with approval by McHugh J in Ousley. However, the key point in Flanagan was that "[n]ecessarily implicit in this ruling is the proposition that the trial judge in the pending County Court trial could determine the validity of warrants issued by Federal Court judges."
56 There is no doubt that an accused may seek to establish such impropriety as a basis for challenging the admissibility of evidence. That may be done through a voir dire, usually prior to the empanelling of a jury. Relevant evidence may be obtained from any source. That may require the issue of a subpoena if the evidence is thought to lie in the hands of the prosecutor, or the investigating authority. It can be entirely separate from any challenge to the validity of the warrant and on different grounds, as illustrated by a comparison of two interlocutory judgments in the Petroulias proceedings, R v Petroulias (No. 5), involving the challenge to an interception warrant, and R v Petroulias (No. 8), involving an allegation of impropriety." (footnotes omitted)
Basten JA's observations were the subject of consideration by in R v Taleb (2019) 276 A Crim R 192; [2019] NSWSC 21, where Hamill J provided a typically helpful review of the relevant principles.
The result of the above is that the challenge that the plaintiff wishes to bring with respect to impropriety is one available to him in the Local Court. That being the case, the Local Court is clearly the more appropriate forum for the questioning of the relevant witnesses. In having regard to these considerations, I am again, anxious that I am trespassing on the merits of the plaintiff's case on his summons. This is a matter that I raised with the plaintiff in the course of argument, during which I expressed the view to the plaintiff that, whilst there is an undesirability to my having regard to matters that impact on the merits of the hearing, in the light of the orders sought it may not be possible for me to determine the motion without doing so. The plaintiff indicated that he was content to proceed.
Ultimately, whilst acknowledging that it will be for the judge at the hearing of the summons to determine the plaintiff's arguments, it is also undesirable that subpoenas are issued to various persons, resulting in the use of the court process and court time dealing with issues where those matters do not appear to me to advance the plaintiff's cause, speaking in the broader sense. Having regard to the above matters in combination, it is my view that the plaintiff has not established a sufficient basis upon which I should exercise my discretion to issue the subpoenas sought with respect to Ms Daly and the first defendant.
In coming to the view that I have, I again stress that this is a decision made with the burden of significant time constraints. These reasons are somewhat more truncated and less considered than they might otherwise be. It may be that, at the hearing of the summons, the plaintiff is able to mount arguments casting doubt on views I have expressed, which have, to some extent, trespassed on the merits of his substantive application in the summons. Be that as it may, for the reasons I have given, I am of the view that, with the exception of prayer 3(a), the motion should be dismissed.
I make the following orders:
1. Prayer 3(a) of the motion is stood over to 31 March 2023 to the hearing of the plaintiff's summons.
2. The notice of motion is otherwise dismissed.
I note the issue of costs will be deferred to follow the hearing of the summons.
[2]
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Decision last updated: 24 March 2023