Sultan (a pseudonym) v The King - [2025] VSCA 171

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2025 0133

RASHAD SULTAN (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]To avoid any risk of prejudice to the administration of justice, these reasons for judgment have been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2025
DATE OF JUDGMENT:	8 July 2025
DATE OF REASONS:	16 July 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 171
JUDGMENT APPEALED FROM:	DPP v [Sultan] (Unreported, 23 June 2025, County Court of Victoria, Judge Murphy)

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CRIMINAL LAW – Interlocutory appeal – Review of refusal to certify – Evidentiary ruling – Home invasion and related offences – Admissions to covert police operative in cells – Whether evidence improperly obtained – Evidence of admissions ruled admissible – Trial judge refused to certify that evidence of admissions if ruled inadmissible would eliminate or substantially weaken prosecution case – Application to review refusal to certify refused.

Criminal Procedure Act 2009, s 295(3)(a), considered.

DPP v Paulino (2017) 54 VR 109, applied.

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Counsel
Applicant		Mr C Pearson
Respondent		Ms S Clancy and Mr J Sutherland
Solicitors
Applicant	Theo Magazis & Associates
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BOYCE JA:

Introduction

A draft indictment before the County Court contains 13 charges against the applicant: home invasion (one charge – charge 1); common assault (one charge – charge 5); being a prohibited person in possession of a firearm (one charge – charge 13); possessing a drug of dependence (two charges – charges 11 and 12); and theft (eight charges – charges 2, 3, 4, 6, 7, 8, 9 and 10).
Charge 1, home invasion, and charge 2, theft of a red VW Golf GTI, relate to offences allegedly committed by the applicant in the early hours of 9 November 2023. By way of very brief summary, the prosecution alleges that the applicant and a co-offender broke into residential premises in Dredge Street, Reservoir, occupied by ‘MA’. After entry, the applicant pointed a firearm at MA and stole car keys. He and his co-offender then sped away in the Golf.
On 24 December 2023, police arrested the applicant at premises at which he sometimes resided in Churchill Avenue, Braybrook. Later that day, at 1.11 pm, police commenced a recorded interview with the applicant. The interview was suspended at 2.05 pm, when the applicant was placed in police cells. ‘Luca’, Victoria Police Covert Operative 377 (‘CO 377’), was placed in the cells with the applicant (who was, of course, unaware that Luca was a covert operative). The prosecution case is that the applicant told a number of lies in the record of interview before it was suspended, and thereafter made a number of admissions to Luca (‘the first covert conversation’).
When police resumed the interview at 3.08 pm, the applicant was largely uncooperative and provided many ‘no comment’ answers to police questions. After police ceased…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sultan (a pseudonym) v The King

Details

AGLC: Sultan (a pseudonym) v The King [2025] VSCA 171
Case: [2025] VSCA 171
Decision Date: 8 July 2025

CaseChat Overview and Summary

The appellant, referred to as Sultan, sought a review of the trial judge's refusal to certify that the evidence of admissions made to a covert police operative while in custody would substantially weaken the prosecution case if ruled inadmissible. The dispute arose from charges related to home invasion and other related offences. The Court of Appeal was tasked with determining whether the trial judge's decision to deny the certification was appropriate. The central legal issue was whether the evidence obtained from the appellant's admissions to the covert police operative was improperly obtained and, if so, whether the refusal to certify was correctly decided.

The court examined the provisions of the Criminal Procedure Act 2009, specifically section 295(3)(a), which allows for interlocutory appeals in cases where the trial judge refuses to certify that the evidence, if excluded, would eliminate or substantially weaken the prosecution case. The court also considered the principles established in the case of DPP v Paulino, which provides guidance on the circumstances under which a trial judge should certify such evidence. The court found that the trial judge had properly exercised their discretion in denying the certification, as the evidence of the appellant's admissions, though potentially prejudicial, was relevant and probative of the charges. The court concluded that the refusal to certify was not an error of law and, therefore, the application for review was dismissed.

The court's reasoning and decision were based on the principle that the trial judge has broad discretion in determining whether to certify evidence, and the court found no grounds to interfere with the trial judge's decision. The court emphasised that the trial judge had considered the prejudicial nature of the evidence but ultimately found it to be admissible and significant to the prosecution's case. The court's decision was consistent with the statutory framework and relevant case law, affirming the trial judge's authority in such matters.

Orders