Woollahra Municipal Council – allegations of corrupt conduct involving offer of payment to the Council (Operation Avoca)

Recommendations for prosecutions

The Commission must seek the advice of the Director of Public Prosecutions (DPP) on whether any prosecution should be commenced. The DPP determines whether any criminal charges can be laid, and conducts all prosecutions. The Commission provides information on this website in relation to the status of prosecution recommendations and outcomes as advised by the DPP. The progress of matters is generally within the hands of the DPP. Accordingly, the Commission does not directly notify persons affected of advice received from the DPP or the progress of their matters generally.

The ICAC is of the opinion that the advice of the DPP should be sought with respect to the prosecution of Don Gamage for:

• an offence under section 249B of the Crimes Act 1900 in relation to the offer of $15,000 to Stephen Blackadder
• two offences under section 87 of the Independent Commission Against Corruption Act 1988 in relation to giving false evidence at his compulsory examination and the public inquiry by denying that he had offered $15,000 to Mr Blackadder
• two offences under section 178BA of the Crimes Act in relation to publishing of false and misleading documents with the intention of obtaining a financial advantage in his applications for employment to Lithgow City Council, Harden Shire Council, Goulburn Mulwaree Council, Bland Shire Council and Upper Lachlan Shire Council
• an offence under section 192G of the Crimes Act in relation to dishonestly publishing a statement that was false or misleading in a material particular with the intention of obtaining a financial advantage in his application to Lachlan Shire Council
• an offence under section 80(c) of the ICAC Act of misleading a Commission officer.

On 20 January 2011, the DPP advised that there was sufficient evidence to charge Mr Gamage with one section 249B Crimes Act offence, seven section 178BB Crimes Act offences, one section 192G Crimes Act offence, two section 87 ICAC Act offences, one section 80(a) ICAC Act offence and one section 80(c) ICAC Act offence.

The Commission made several attempts to contact Mr Gamage to serve the court attendance notices (CANs). On 8 July 2011, the then Federal Department of Immigration and Citizenship advised the Commission that Mr Gamage had departed Australia on 26 December 2010 and had not returned. On 17 October 2011, the CANs were issued and a warrant issued for Mr Gamage’s arrest.

On 19 November 2020, Mr Gamage was deported from the USA to Australia. On 8 September 2021, Mr Gamage was granted bail by the Supreme Court of NSW.

By Notice of Motion dated 18 October 2021, Mr Gamage applied to have the criminal proceedings permanently stayed. The application was refused by Magistrate Price on 16 June 2022.

By summons filed in the Supreme Court on 8 July 2022, Mr Gamage sought leave to appeal that decision. Although an ICAC officer was named in the summons as respondent, by Notice of Motion filed on 9 August 2022, the DPP sought to have the ICAC officer removed as the defendant and the DPP joined as the defendant. On 1 September 2022, the Registrar of the Supreme Court made orders to join the DPP as a party to the proceedings and to remove the ICAC officer as a respondent to the summons. On 13 September 2022, Mr Gamage filed a notice of motion seeking to set aside the orders of 1 September 2022. On 11 November 2022, Rothman J determined that the DPP was a proper party but also re-joined the ICAC officer.

On 31 January 2023, Yehia J dismissed Mr Gamage’s application for leave to appeal the 16 June 2022 decision (on the basis that Magistrate Price had no power to determine an application for a permanent stay of proceedings in committal proceedings).

On 3 May 2023, Mr Gamage served the Commission with a subpoena to produce the affidavit made in support of an application for a surveillance device warrant (see below). The Commission’s application to have the subpoena set aside was set down for hearing on 5 June 2023. Before that date, Mr Gamage served an ICAC officer with a subpoena to give evidence at that hearing. On 5 June 2023, both subpoenas were set aside on the basis that neither served a legitimate forensic purpose. On 19 June 2023, Mr Gamage filed a summons in the NSW Supreme Court seeking leave to appeal the decision to set aside the subpoenas. This matter was heard before Rothman J on 8 February 2024 and judgment was reserved.

On 13 June 2023, Mr Gamage filed a summons in the NSW Supreme Court seeking an order of mandamus in the Supreme Court to require the Local Court to issue subpoenas for seven witnesses to give evidence, among other related orders. On 21 June 2023, Mr Gamage filed a notice of motion for an injunction to compel the Local Court to vacate the hearing for the criminal proceedings and sought leave to amend the summons. On 23 June 2023, Button J rejected the application for an injunction and declined to intervene on the basis that Mr Gamage’s complaints can and should be dealt with by the Local Court. This summons was listed for hearing on 8 February 2024. The matter was heard before Rothman J and judgment was reserved.

On 26 June 2023, Mr Gamage’s applications to issue subpoenas were refused by the Local Court. At the same time, his application for dismissal and a permanent stay of proceeding was refused. His application that the hearing be adjourned was refused. His application that the Magistrate recuse himself from hearing the matter was refused. The hearing commenced on 27 June 2023 and is currently part heard before the Local Court. The matter will be mentioned on 5 March 2024, with the hearing set down to continue between 25 and 28 March 2024. The matters relating to offences pursuant to the ICAC Act, are listed on 11 April 2024 for mention, with the hearing set down to continue between 6 and 8 May 2024.

On 18 July 2023, Mr Gamage filed a further summons seeking leave to appeal to the Supreme Court from the Local Court’s decision on 26 June 2023 to refuse his application for dismissal and permanent stay of the proceedings, and from a further Local Court decision on 27 June 2023 to admit into evidence a recording of a telephone call made in reliance on the surveillance devices warrant referred to above. He also seeks an order that certain named persons be required to give evidence at the hearing of the summons. This summons was listed for hearing on 8 February 2024. The matter was heard before Rothman J and judgment was reserved.

Gamage v Riashi & Anor (Supreme Court application): On 21 November 2022, Mr Gamage filed a summons in the Supreme Court seeking access to an application for a surveillance device warrant made by an ICAC officer on 16 December 2009. The Commission was subsequently joined as the second defendant and a submitting appearance filed on behalf of the ICAC officer. On 20 March 2023, Mr Gamage filed a notice of motion to issue three subpoenas. The notice of motion was partially dismissed on 22 March 2023 (Gamage v Riashi [2023] NSWSC 277). The summons and the balance of the notice of motion were dismissed on 19 April 2023 (Gamage v Riashi & Anor [2023] NSWSC 390).