Gamage v Riashi & Anor.

Introduction

1. Don Gamage ('the plaintiff') has been charged with thirteen offences - described later in these reasons, but essentially arising out of an investigation undertaken by the Independent Commission Against Corruption ('ICAC' or 'the Commission') - with the hearing of those charges to commence in the Local Court on 26 June 2023.
2. The plaintiff, by summons filed 21 November 2022, seeks a declaration that he is entitled to "obtain a copy of the application" for a surveillance device warrant made to this Court on 16 December 2009. Simply put, the plaintiff desires access to this material because he wishes to mount an argument that a telephone recording of him - said to be authorised by the warrant issued - was improperly obtained, and so cannot be used in the impending criminal proceedings.
3. The defendants to the application are an investigator employed by ICAC ('the first defendant'), and ICAC itself.
4. The defendants adopted different positions on the plaintiff's application: the first defendant filed a submitting appearance, whereas the second defendant opposed the making of the declaration.

Background

1. There was no significant issue about the background facts, which I find are as follows.
2. The plaintiff was the subject of an investigation conducted by ICAC during the period 2009-2010. The plaintiff had, to that point, held senior engineering positions at Cobar Shire Council and Coonamble Shire Council.
3. The investigation, which extended to a public inquiry, was described in the report prepared by ICAC following the conclusion of that investigation, as concerning an allegation that on or around 26 October 2009 the plaintiff offered $15,000 to Stephen Blackadder in order to secure employment as Director, Technical Services, at Woollahra Municipal Council.
4. At that time Stephen Blackadder provided management consulting services to local government clients, and he had been retained by Woollahra Municipal Council to conduct the recruitment process for the position of Director, Technical Services, at the Council.
5. On 25 October 2009, Mr Blackadder received a telephone call from the plaintiff enquiring about the position. The plaintiff was then employed as Director of Engineering at Coonamble Shire Council (and thus a public official for the purposes of the Independent Commission Against Corruption Act 1988 (NSW) ('ICAC Act')). The next day, the plaintiff sent an email to him, attaching a copy of his resume and a request for a meeting. The resume that was provided contained, ICAC found, a number of falsities. It is unnecessary to refer to the detail of the falsities found.
6. On 26 October 2009, the plaintiff telephoned Mr Blackadder. Mr Blackadder gave evidence, during the public hearing held by the Commission, that it was during this telephone call that the plaintiff offered Mr Blackadder $15,000 in order to secure the position. Later that week, on 31 October 2009, Mr Blackadder sent a letter to ICAC, and a copy to the Council, outlining his version of the conversation with the plaintiff. He also advised the general manager of the Council of that incident, and sent him a copy of the letter that was sent to ICAC.
7. On 16 December 2009, at the request of the Commission, Mr Blackadder agreed to telephone the plaintiff in order that their conversation could be recorded. The conversation was recorded upon a device placed near Mr Blackadder's mobile telephone, which he had placed on loudspeaker.
8. The recording of this conversation was undertaken pursuant to a surveillance device warrant issued, under the Surveillance Devices Act 2007 (NSW) ('the SDA'), by McCallum J on 16 December 2009. The applicant for the warrant was Jan Daly, on behalf of the first defendant. The warrant authorised the use of surveillance devices in respect of the conversations of the plaintiff and Stephen Blackadder for the period commencing 5:20pm on 16 December 2009 until 5:20pm on 22 December 2009.
9. During that conversation, the plaintiff told Mr Blackadder that he had been contacted by officers of ICAC, and he enquired of Mr Blackadder whether he had any idea why ICAC officers wished to interview him. There was then a discussion between them about the offer of $15,000. The Commission found that the telephone conversation on that day "makes it clear that [the plaintiff] had offered $15,000 to Mr Blackadder". The recording of this telephone discussion was adduced in evidence during the course of the public hearing. It is expected to be deployed during the course of the hearing in the Local Court.
10. Following the investigation, and public hearing, findings of corrupt conduct were made by the Commission against the plaintiff - being: 1. first, that the plaintiff "provided a false employment history and references purporting to be from work colleagues" when he applied for positions at Cobar Shire Council and Coonamble Shire Council; and 2. secondly, that the plaintiff "provided a false employment history when he applied for positions at Lithgow City Council on 16 July 2009, Harden Shire Council on 23 July 2009, Goulburn Mulwaree Council on 20 September 2009, Bland Shire Council on 25 November 2009, Upper Lachlan Shire Council on 4 February 2010 and Lachlan Shire Council on 9 April 2010".
11. The statement under s 74A(2) of the ICAC Act, contained in the report prepared by ICAC, suggested that consideration should be given to obtaining the advice of the DPP "with respect to the prosecution" of the plaintiff for a range of offences in connection with the presentation of false information to obtain employment, as well as for an offence under s 80(c) of the ICAC Act.
12. Subsequently, in 2011, the plaintiff was charged with thirteen offences involving fraud, corruption, misleading ICAC and obstructing ICAC officers. Those charges are: 1. One count of corrupt commission of rewards, contrary to s 249B(2) of the Crimes Act 1900 (NSW); 2. Two counts of false and misleading evidence, contrary to s 87(1) of the Independent Commission Against Corruption Act 1988 (NSW); 3. One count of obstruction of Commission, Inspector and other, contrary to s 80(c) of the Independent Commission Against Corruption Act 1988 (NSW); 4. One count of obstruction of Commission, Inspector and other, contrary to s 80(a)(i) of the Independent Commission Against Corruption Act 1988 (NSW); 5. Seven counts of obtain money by false or misleading statement, contrary to s 178BB(1) of the Crimes Act 1900 (NSW) (repealed); and 6. One count of intention to defraud by false or misleading statement, contrary to s 192G(b) of the Crimes Act 1900 (NSW).
13. Those charges are listed for hearing in the Local Court on 26-30 June 2023.
14. The explanation for the delay between the commencement of the proceedings, and the hearing of those charges, lies in the fact that the plaintiff was absent from Australia between December 2010 and late 2020: the plaintiff was arrested on 3 December 2020 upon his return to Australia, and following completion of hotel quarantine.

Introduction

1. Before dealing with the substance of the plaintiff's summons, and the arguments advanced to support the relief sought, it should be noted that, perhaps in recognition that a declaration in the terms sought may not, in fact, make available for use in the criminal proceedings the material which the plaintiff seeks access to, the plaintiff filed on 20 March 2023 a "Notice of Motion to Issue Three Subpoenas". By that notice of motion, the plaintiff sought a number of orders, including leave of this Court to issue a subpoena to the Chief Commissioner of ICAC to produce 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" (order 3(a)).
2. That notice of motion was initially returnable before Dhanji J as Duty Judge on 22 March 2023. His Honour dismissed the plaintiff's notice of motion, except in relation to order 3(a): given the possible overlap between that order sought and the relief sought in the plaintiff's summons, his Honour stood over that part of the plaintiff's notice of motion for hearing to be heard at the same time as the plaintiff's summons.
3. The plaintiff accepted that the determination of the summons, if favourable to the defendants, would dispose of that notice of motion.

The plaintiff's arguments: a summary

1. The essential complaints made by the plaintiff are twofold, and both arise out of the recording of the telephone conversation involving him on 16 December 2009 to which reference has been made: see [12]-[13], above. The first complaint is that the warrant issued under the SDA did not lawfully authorise the recording, and what was actually required was an order under the Telecommunications (Interception and Access) Act 1979 (Cth) ('the TIA'). The second complaint is that that recording was "illegally collected": it is argued McCallum J had been misled because the affidavit in support of the application "wilfully concealed the fact that [the first defendant] was seeking the issue of an SD warrant to use as authority to record a telephone call" (plaintiff's submissions at [9] (emphasis in original)). It was later said that this conduct demonstrated that the defendant's "carefully planned to abuse the wording of the state law" (plaintiff's submissions at [11]).
2. In my view the first argument raised by the plaintiff - whether a warrant was required under the TIA, and not the SDA - does not arise for determination on the summons. That is an argument that is separate from, and has no need for a recourse to, the evidence provided to support the application made to McCallum J for a warrant under the SDA. Put simply, nothing in the material that the plaintiff seeks will affect that argument. It is not, therefore, a basis to make the declaration sought. The issue is a matter for the Local Court to determine at the forthcoming hearing.
3. So understood, the dispute reduces to the plaintiff's second complaint - namely, that the application made to McCallum J was, in effect, tainted by "fraud" and that therefore it is "in the interests of justice" that he be provided access to the evidence in support of the application for the warrant. The second defendant's essential submission was that to embark upon a determination of this "issue" would fragment the criminal proceedings without justification - the issue was capable of being raised in, and determined by, the Local Court.

The avoidance of fragmentation

1. It is important to emphasise the context of the plaintiff's application. There are extant criminal proceedings (which themselves have been long delayed), to be heard shortly, in which the plaintiff seeks to challenge the warrant authorising the recording of the conversation on 16 December 2009. The plaintiff, by these proceedings, seeks access to material for use in those proceedings. And, for the plaintiff to secure access to the material, he requires a finding that it is in the interests of justice that he be authorised to search the Court's records - an enquiry that is intimately bound up in the nature of the challenge that the plaintiff wishes to bring in the Local Court in connection with the warrant.
2. In that setting, a broader principle is in play - viz., the undesirability, and discouragement, of fragmenting the criminal process by the bringing of concurrent proceedings in courts other than the trial court: the High Court has "repeatedly stressed the need for civil courts to avoid becoming involved in aspects of the criminal justice system": Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395; [2001] FCA 145 at [7] ('Jiang'); and it is a well-established principle "that criminal proceedings should not be fragmented by other courts' entertaining, except in exceptional or extraordinary circumstances, applications of various kinds by or against one or more of the participants in the criminal trial": Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149, 187; [1996] FCA 16 ('Flanagan'). More recently, this general principle was expressed in Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [23], as follows: With respect to the exercise of the power to make the declaratory orders now sought by the applicants, authority in this Court affirms an important general principle. This is that power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings all. The fragmentation of the criminal process is to be actively discouraged. In any event, a declaration may be of limited utility where founded, as would be the case here, on facts admitted only for the purposes of the satellite litigation.
3. The reasons why it is undesirable are "obvious", and they "include delay and its effects": The Queen v Rolfe (2021) 95 ALJR 975; [2021] HCA 38 at [32]. The reasons also include the importance of avoiding discontinuity and disruption of the procedures of the criminal law: Jiang at [8].

Challenging the validity of the warrant in the Local Court

1. It is important, given the plaintiff's argument, to explain the extent to which warrants can be challenged, and a different situation - challenging the admissibility of evidence based on impropriety on the part of an applicant for a search warrant.
2. In relation to challenging the validity of a warrant, the permissible scope of such a challenge is confined to what is disclosed on the face of the warrant itself. That is, whether the warrant complied with the statutory preconditions for its issue: a trial court has "no power to examine the affidavits and other material placed before the authority which issued the warrants in order to challenge the validity of the warrants": Gould v Director of Public Prosecutions (Cth) (2018) 359 ALR 142; [2018] NSWCCA 109 at [52] ('Gould'), citing Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28; Grollo v Palmer (1995) 184 CLR 348; [1995] HCA 26; Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49. These principles are of general application, "relevant to collateral review of statutory warrants generally": R v Cranston (No 3) [2020] NSWSC 1103 at [28] ('Cranston').
3. The prohibition on an accused mounting a "collateral attack", and the confined manner in which the validity of a warrant can be challenged, was helpfully summarised by Hamill J in Commissioner of Police, NSW v Taleb (2019) 276 A Crim R 192; [2019] NSWSC 21 at [32] in these terms: A party cannot "go behind" a warrant (such as a search warrant, a surveillance device warrant or telephone intercept warrant) in an attempt to obtain the material that was used to procure the warrant. The validity of the warrant is determined by considering whether it is valid "on its face". An accused in a criminal trial may not mount a "collateral attack" on the validity of the warrant by seeking to examine the sufficiency of the material upon which the relevant authorised person or authority issued the warrant. This has been made clear in a number of well-known cases decided in the High Court, intermediate appellate courts and single judges of this Court …
4. Nevertheless, in confined circumstances, it may be possible, in effect, to challenge a warrant beyond the limited circumstances described above. That possibility was recognised in Gould. In that case, Basten JA (Johnson and Adamson JJ agreeing), said, in connection with the power to exclude evidence where allegations of 'bad faith' and 'impropriety' had been alleged (at [54] and [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. … [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…

Section 43 of the SDA

1. The plaintiff also argued that there was, in effect, a statutory prohibition against access to this material by reason of s 43 of the SDA, with the consequence that the only way for the plaintiff to secure this material was by the grant of leave under that section. In short, this was the reason advanced by the plaintiff that was said to justify a departure from the principle against fragmentation of criminal proceedings. The second defendant submitted that the section was only directed to the material (the "protected information") held by the Court, not more broadly.

The SDA: the relevant provisions

1. Section 43 of the SDA provides: A person is not entitled to search any protected information in the custody of a court unless the court otherwise orders in the interests of justice.
2. The meaning given to that provision begins, and ends, with the words which Parliament has used, having regard to context and objectively discerned purpose: Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]-[23]; Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [39]. The "context" necessarily extends to a consideration of the provisions that surround it, and the Act as a whole: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[71]. I will therefore set out the relevant parts of the SDA that give context to s 43.
3. Part 3 of the SDA deals with warrants, including their issue. A surveillance device may be issued under that Part by an eligible Judge: ss 15(1) and 16(1).
4. In general terms, a law enforcement officer, or person on their behalf, may apply for the issue of a surveillance device warrant if that person on reasonable grounds suspects or believes that a "relevant offence has been, is being, [or] is about to be or is likely to be committed"; and an investigation into that offence "is being, will be or is likely to be conducted in this jurisdiction"; and the use of a surveillance device "is necessary for the purpose of an investigation into that offence to enable evidence to be obtained of the commission of that offence or the identity or location of the offender": ss 17(1)(a)-(c). That application can be made to an eligible Judge, but is not to be heard in open court: ss 17(2)(a) and 17(6). The application must, subject to s 17(4), be in the form of an affidavit that includes the information required by ss 17(3)(a)-(g).
5. An eligible Judge may issue a surveillance device warrant if satisfied of the matters in ss 19(1)(a), but in doing so must consider the matters in ss 19(2)(a)-(g).
6. A surveillance device warrant must specify particular matters - the "surveillance device warrant particulars": s 20(1). Section 21 then deals with the manner in which the surveillance device can be used.
7. Part 4 of the SDA makes provision for recognition of corresponding warrants and authorisations: ss 37 and 38.

Section 43: its meaning

1. In relation to s 43, in my view the section is directed, and only directed, to the protected information held by the Court, and not more expansively as the plaintiff argued so as to preclude the release, by any means and any person, of "protected information". That is essentially for the following two reasons.
2. The first is that the construction advanced by the plaintiff is contrary to the plain meaning of the section. The key textual indicators, within the section itself, which define its scope and subject matter, are the word "search" and the phrase "in the custody of the court". Each of them imposes a constraint, and define its scope and subject matter - namely, the protected information in the custody of a court.
3. The second reason is that internal coherence supports the construction - viz., the construction is consistent with other provisions of the SDA, notably those that deal with reporting and record-keeping (Part 5, Division 2), as well as the statutory exceptions to the prohibition on the disclosure of protected information. It is clear from ss 46 and 46A that other bodies (rather than a court) are vested with the responsibility to keep records in connection with applications for warrants. Whether, and in what manner, those other bodies may be required or permitted to disclose the content of protected information is covered by other provisions. For example, s 40(5) of the SDA provides: Without limiting subsection (4) or (4A), protected information may be communicated or published by a law enforcement officer to any person with the consent of the chief officer of the law enforcement agency of which the officer is a member.
4. Thus, in my view, contrary to what the plaintiff argued, s 43 of the SDA does not prescribe a general prohibition against access to the protected information irrespective of the person or body holding that protected information - relevantly here, the application for the issue of the warrant, and the evidence in support of that application. Rather, it precludes a person undertaking a "search" of any protected information in the custody of the Court, "unless the court otherwise orders in the interests of justice".

The interests of justice are against granting access

1. There is a further basis upon which I refuse the relief the plaintiff seeks. Accepting the amplitude of the phrase "in the interests of justice" (see generally Landsman v The Queen (2014) 88 NSWLR 534; [2014] NSWCCA 328 at [69]), I do not consider that it is in the interests of justice that the plaintiff be authorised, by order, to search any protected information in the custody of the Court (assuming it exists). That is for the following reasons.
2. First, there is, as I have earlier referred to, no entitlement to challenge the validity of the issuing of a search warrant and, as a corollary, no legitimate forensic purpose in having a subpoena issued for the production of material in order to examine its sufficiency. Yet, by the plaintiff's argument, the mere raising of a suggestion that there has been some alleged impropriety in securing a warrant would be a sufficient basis to grant access to the protected information and in doing so bypass the proper method in gaining access to that material - viz., by seeking to have a subpoena issued in the Local Court to the holder(s) of the protected information, and having that Court determine whether there is a legitimate forensic purpose for its issue: Gould at [56]. To accede to the plaintiff's application, creates, to my mind, not only the significant concern about fragmentation (that I have earlier addressed), but a broader one concerning legal coherence. A similar point was made in Gould at [59], in connection with a submission that material of the kind that the plaintiff seeks here should be produced by the prosecution under its duty of disclosure. In connection with that submission, it was said: The potential effect of accepting this aspect of the applicant's case would be, on the one hand, to subvert the established constraints on challenges to the validity of a warrant by allowing the same effect to be achieved by recharacterising the challenge as one going to "investigatory impropriety", but not the legal validity of the process, while, on the other hand, avoiding the constraints on the issue of a subpoena.
3. In my view these general considerations apply here, and also point to why the interests of justice do not favour granting the access that the plaintiff seeks.
4. Secondly, to the extent that the plaintiff has any entitlement to secure this material, and to deploy it in aid of any argument, that is quintessentially a matter for determination by the Local Court. In addition to whether it will grant leave to issue a subpoena for production of the material from the holder(s) of the protected information, that Court will be seized of the precise argument advanced; it will determine whether there were departures from the statutory requirements, and the nature of those departures; it will evaluate the seriousness of the charges and the importance of the evidence obtained under the warrant to those charges - these being matters that would necessarily be considered in any application to exclude the evidence under s 138 of the Evidence Act 1995 (NSW). As was said in Hausfeld at [25]: It is by far preferable that the whole of the issues be litigated before the trial judge where the discretionary considerations can immediately be brought to bear, with full information, if the challenges to the regularity of the warrant are sustained.

The plaintiff's notice of motion: order 3(a)

1. In my view, given the acceptance by the plaintiff that if the summons was dismissed, then that foreclosed the plaintiff securing an order that leave be granted to issue a subpoena to the Chief Commissioner of ICAC, the plaintiff's notice of motion will be dismissed.
2. That conclusion follows, irrespective of what the plaintiff conceded. There is no basis for the plaintiff to seek leave of this Court to issue a subpoena, other than in aid of securing relevant material for use in proceedings in the Court. Here, of course, there are no such proceedings. In any event, as I have earlier noted (see [60], above), I am entirely unpersuaded that there is a legitimate forensic purpose demonstrated in the material for seeking the production of the material on subpoena and, absent demonstration of that matter, leave to issue the subpoena is refused: rr 7.3(1) and (2) of the Uniform Civil Procedure Rules 2005 (NSW); Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183 at [5]-[6].

Orders

1. For the above reasons, I make the following orders: 1. Order that the plaintiff's summons filed 21 November 2022 be dismissed. 2. Order that the plaintiff's notice of motion filed 20 March 2023 be dismissed. 3. Order that the plaintiff pay the first defendant's costs on a submitting basis. 4. Order that the plaintiff pay the second defendant's costs of the summons filed 21 November 2022 and notice of motion filed 20 March 2023.

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