Gamage v Riashi [2025] NSWCA 84
The NSW Court of Appeal has held that neither the Independent Commission Against Corruption nor its officers had authority to institute prosecutions under the Crimes Act 1900 (NSW) (Crimes Act). However, they do have the power to institute prosecutions under the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act).
Following this decision, officers from government agencies who are considering instituting prosecutions should carefully consider whether they have the power to do so, including having regard to the express and implied powers and functions of the agency.
In 2011, Mr Riashi (the respondent and an officer of the Commission) issued court attendance notices (CANs) in the Local Court against Mr Gamage for offences under the Crimes Act and ICAC Act. The Local Court refused Mr Gamage’s application for a permanent stay of proceedings and the dismissal of all charges against him, which was brought on a number of grounds, including that the Commission did not have the power to prosecute.
Mr Riashi’s appeal and summons in the Supreme Court were dismissed by Rothman J.
Mr Gamage then sought leave to appeal before the Court of Appeal on the ground that the primary judge had erred in deciding that Mr Riashi had power to prosecute.
The issue for determination by the Court of Appeal (Basten AJA, Leeming JA, and Griffiths AJA agreeing) was whether the prosecution was lawfully commenced by Mr Riashi.
As the CANs were not signed by a registrar, Mr Riashi could only have validly commenced the proceedings as a 'public officer' pursuant to s 173 of the Criminal Procedure Act 1986 (CP Act). The definition of a public officer in s 3(1) requires that the person is 'acting in an official capacity'.
The Court held that Mr Riashi could only have been 'acting in an official capacity' if it was within the powers and functions of the Commission to institute criminal prosecutions. The Court examined the powers and functions of the Commission under the ICAC Act, and concluded that there was no express or implied conferral of a power or function for the Commission to commence prosecutions.
As a result, the Court determined that neither the Commission nor its officers had the authority to issue CANs (in the capacity of a public officer) charging Mr Gamage for offences under the Crimes Act, and those CANs were therefore invalid. The Court set aside the convictions and sentences resulting from those CANs.
However, the Court accepted that the Commission had the power to prosecute breaches of the ICAC Act, holding that steps taken to protect the integrity of the Commission’s own investigation fall within the scope of the incidental powers conferred by s 19(1) of the ICAC Act.
When determining whether to initiate criminal proceedings, a prosecutor should consider whether relevant legislation expressly confers on the prosecutor a power or function of instituting such proceedings. If not, a prosecution may be instituted under s 14 of the CP Act in certain circumstances - this provision states that 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'.
If proceedings are to be commenced by the filing of a CAN, the prosecutor will need to follow the procedure in either s 173 or s 174 of the CP Act.
If a prosecutor seeks to rely on s 173 as a 'public officer… acting in an official capacity' (as defined by ss 3(1) of the CP Act), consideration should be given as to whether it is within the powers and functions of the prosecutor to prosecute those specific offences. A prosecutor can look to an express function or power involving the prosecution of criminal offences or, if an express provision does not exist, consider whether such a function or power can be inferred from the statutory context.
On 18 November 2025, the Criminal Procedure and Other Legislation Amendment (Criminal Proceedings) Bill 2025 was passed by the Legislative Council and Legislative Assembly, which inserted pts 47 into schs 2 of the CP Act. Part 47 provides that, where a person has commenced prosecution proceedings and has purported to have done so in an official capacity, that person is taken to have been acting in an official capacity, regardless of whether or not the relevant prosecutor had an express or implied function of commencing prosecution proceedings. Part 47 has retrospective application.
Claudia Pendlebury, Director
claudia.pendlebury@cso.nsw.gov.au
02 9377 6436
Susan Ellicott, Principal Solicitor
susan.ellicott@cso.nsw.gov.au
02 9377 6496
The CSO's Regulatory & Environment practice group specialises in advising and representing agencies in relation to regulatory compliance and prosecutions, statutory interpretation advice in the environment and natural resources context, as well as criminal law, evidence and procedure.
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