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

DPP v Paulino [2017] VSCA 38; (2017) 54 VR 109, applied.

1. 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).
2. 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.
3. 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').
4. 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 the interview at 3.36 pm, the applicant was again placed in the cells with Luca, where, the prosecution alleges, between 3.39 pm and 4.15 pm, he made a number of admissions and incriminating statements in relation to offences that police were investigating ('the second covert conversation').
5. In an application to the trial judge, counsel for the applicant sought the exclusion of, first, the entire record of interview conducted on 24 December 2023; secondly, the entire conversation between CO 377 and the applicant in police cells; and thirdly (and in the alternative), the conversation between CO 377 and the applicant from 3.39 pm to 4.15 pm.
6. By a ruling delivered on 23 June 2025, the trial judge rejected the applicant's challenge to the admissibility of the record of interview and the admissions contained in the conversations between CO 377 and the applicant ('the admissions ruling' or 'the interlocutory decision').
7. Subsequently, on 27 June 2025, the judge refused to certify under s 295(3)(a) of the Criminal Procedure Act 2009 ('CPA'), that the evidence, if ruled inadmissible, 'would eliminate or substantially weaken the prosecution case' ('the certification ruling').
8. Pursuant to s 296 of the CPA, the applicant sought a review of the judge's refusal to certify. Were that application to be successful, he sought leave to appeal against the interlocutory decision - but only so far as it relates to the second covert conversation - on the following ground:
   1. The ruling made that the admissions that were made by the [applicant] to 'Luca' in the second covert conversation in the Police cells at Footscray are admissible at Trial is erroneous.

Particulars:

(i) The admissions were made by the [applicant] at a time after he had withdrawn whatever waver [scil, waiver?] of his right to not respond to police questioning that the [applicant] had previously made.

(ii) The admissions were obtained by subterfuge and in breach of the basic rights of the [applicant].

1. At the conclusion of oral argument on 8 July 2025, we made an order refusing the application to review the certification ruling, and indicated that we would provide reasons for that order in due course. These are those reasons.

1. Before turning to the submissions of counsel, it is convenient to say a little more about the alleged offending and its aftermath.
2. At about 9.00 pm on 8 November 2023, a woman, 'OG', commenced communicating with an adult male, 'MA', via Facebook messenger. In the course of the messages, OG said she wanted to catch up with MA; said she will be close to MA's residence; asked MA to meet her in Thomastown; asked MA whether he had access to a car (and he confirmed that he did); and, at 12.30 am on 9 November 2023, offered to go to MA's residence (an offer which he declined).
3. Less than an hour after the last messages between OG and MA, at 1.20 am on 9 November 2023, MA was at his home in Dredge Street, Reservoir, when he heard footsteps approaching his bedroom window. He looked outside and saw two men - the prosecution alleges that the applicant was one of them - wearing masks. The prosecution alleges that the applicant pointed a firearm at MA and said, 'Don't move, don't move'.
4. MA then ran from the bedroom to another room. On the prosecution case, the applicant entered the bedroom through a window while pointing a firearm in MA's direction. The applicant then reached into MA's bedside table, stealing the keys to MA's red VW Golf GTI which was parked in the driveway. Having obtained the keys, the applicant exited MA's residence through the bedroom window. He and the co-offender then fled (at least one of them in the Golf).
5. MA immediately telephoned the '000' emergency number to report the offending. He provided CCTV footage, captured by cameras positioned in his bedroom and driveway, to police. The prosecution alleges that the CCTV footage shows the applicant wearing a black or navy blue face mask, a white hooded jumper, black motorcycle protection gloves, black 'Air max' tracksuit pants and white Nike shoes. He is in possession of a black satchel bag with two zips and an Apple watch, and is holding a black-handled silver-barrelled sawn-off rifle.
6. A little over a week later, in the early evening of 17 November 2023, OG went to MA's residence in Dredge Street, Reservoir, and handed him his wallet, which had been in the Golf GTI when it was stolen. OG stated her ex-partner, 'JT', had been in possession of the wallet. When the wallet was returned to MA it contained JT's Medicare card. OG told MA that his vehicle was located at a property in Galena Crescent, Kings Park (which was an address apparently frequented by the applicant).
7. It is clear that OG and the applicant were acquainted. On 23 November 2023, police attended a property in Wollert in relation to a family violence incident, and, in the course of their visit, obtained OG's mobile telephone number. Subsequently obtained call charge records show that the applicant and OG had contact via their mobile telephones between 7 November 2023 and 29 November 2023, including 126 text messages (from 7 November to 14 November 2023) and 46 calls.
8. Moreover, cell tower activity on 8 November 2023 shows that at 11.35 pm both the applicant's and OG's telephones were in the vicinity of the applicant's residence in Kings Park. At 12.50 am on 9 November 2023, after OG confirmed that MA was at home in Reservoir, both telephones moved from Essendon to Essendon North, then Strathmore Heights, Tullamarine, Broadmeadows, Campbellfield and, finally, Reservoir. At 1.18 am the applicant's telephone was turned off, but OG's telephone remained on in the vicinity of MA's address. The applicant's telephone was turned back on at 1.22 am. At 1.35 am, both OG's and the applicant's mobile phones were located within the vicinity of the applicant's address in Kings Park.
9. As we have said, the applicant was arrested on 24 December 2023.[2] During the second covert conversation, the applicant told CO 377 (among other things) that:
   • he was involved in a home invasion at residential premises 'just behind the new Reservoir Police Station' three to four months ago at 4.00 am;[3]
   • the victim, a Greek male, produced a firearm which the applicant believed to be a gel-blaster;[4]
   • he went to the premises with three others, all of them wearing balaclavas as a disguise;
   • they forced entry through the front door, the applicant saying, 'I went through like Santa going down the chimney, the door went in that fast';[5]
   • he discharged seven shots from a nine millimetre handgun in the living room;[6]
   • a female, whose name was ['O'], was present;
   • the victim had internal footage from the bedroom which he gave to police showing him wearing a satchel bag;
   • he stole drugs from beneath the victim's bed;[7]
   • he 'flogged' (that is, assaulted) the victim by hitting him with the firearm to an extent that he was 'unrecognisable';[8]
   • a co-offender drove the victim's Golf GTI away and he left in another vehicle; and
   • he did not sell the vehicle.

Submissions concerning the certification ruling

1. As set out in the applicant's notice, the grounds of the application for review of the judge's refusal to certify under s 295(3)(a) of the CPA are as follows:

1 The ruling ... was not a routine ruling concerning evidence.

1. The ruling ... was a ruling as to the admissibility of the only direct evidence available to the Prosecution in the case against the [applicant].
2. If the admissions made by the [applicant] - and in particular the admissions in the second covert conversation - had been ruled inadmissible, that would in fact have the effect of substantially weakening the case against the [applicant] at Trial.
3. The substantive ruling ... - in particular as to the admissions of the [applicant] in the second covert conversation - is plainly attended with material error.

1. In support of the grounds set out immediately above, in this Court counsel for the applicant submitted that the judge should have certified under s 295(3)(a) of the CPA that the evidence of admissions to which the ruling relates, which the judge ruled to be inadmissible, 'would eliminate or substantially weaken the prosecution case'. He referred in that regard to certain observations of Weinberg JA in Paulino.[9] The applicant's counsel submitted that, whatever the strength of the case against the applicant is asserted to be, absent his admissions the case against him is entirely circumstantial. Counsel submitted in writing that if the applicant's admissions to Luca in the second covert conversation are not excluded, it is 'inevitable' that the applicant will be convicted of the home invasion (albeit that in oral argument he submitted that his use of 'inevitable' might have been 'too strong'). Since the admissions ruling has particular significance as to whether the applicant's defence at trial is at all tenable, it is far from being a routine evidentiary ruling.
2. Further, counsel for the applicant submitted that the admissions ruling was 'plainly erroneous'. Counsel submitted that the judge had wrongly thought that the admissions in the second covert conversation were challenged under s 90 of the Evidence Act 2008 on the basis that it would be unfair to the applicant to permit them to be adduced at trial. That was not the basis of the challenge to their admissibility. Indeed, in oral argument counsel made it clear that he eschewed any reliance on s 90. Rather, counsel submitted, the admissibility of the admissions to CO 377 in the second covert conversation had been challenged on the basis that it had been improperly obtained, thereby enlivening s 138 of the Evidence Act 2008. Counsel submitted that overall, if the admissions ruling had led to the exclusion of the evidence of the admissions to Luca in the second covert conversation, the prosecution case would have been 'substantially weakened'.

1. The respondent's counsel submitted that the trial judge will usually be best placed to decide whether the criterion in s 295(3)(a) - that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case - is satisfied. Counsel submitted that the judge was correct to find that the criterion in s 295(3)(a) was not satisfied, given the wealth of evidence in the prosecution case. That evidence includes the following:
   • in the days following the home invasion and theft, the applicant was captured on closed circuit television ('CCTV') footage in possession of the stolen red Golf GTI;
   • the applicant's DNA was found on a firearm which has the same appearance as the one used in the home invasion;
   • subsequent to the home invasion, the applicant was seen in possession of a distinctive black satchel bag with two zips, which appears to be identical to the one seen in possession of the offender in CCTV footage captured during the home invasion;
   • telecommunications cell tower evidence places the applicant's mobile telephone in the vicinity of the residence where the home invasion occurred on 9 November 2023;
   • between 7 November and 29 November 2023, 'OG' exchanged over 126 text messages and had 46 calls with the applicant, in circumstances where, approximately one hour before the home invasion, OG asked MA via a Facebook message whether he had access to a motor vehicle (and he confirmed that he did), and ten days after the home invasion, OG returned MA' wallet - which had been in the red Golf GTI that was stolen during the home invasion - to him.
2. Counsel for the respondent submitted that, in light of the fact that without the impugned admissions the prosecution's circumstantial case remained strong, the judge was correct to find that the evidence of admissions, if ruled inadmissible, would not eliminate or substantially weaken the prosecution case.

1. Counsel for the applicant submitted that if the judge's decision refusing certification is set aside, the admissibility of the admissions contained in the second covert conversation is challenged on the basis that the evidence was improperly obtained. Before the second covert conversation with Luca, the applicant had clearly and unequivocally indicated to police that he no longer wished to speak to them. Putting him in the cells with CO 377, derogated from the applicant's right to remain silent by not answering any further police questions. As was the case in Swaffield,[10] the police conduct in permitting the second covert conversation to proceed tainted the applicant's admissions with illegality. The admissions contained in the second covert conversation should therefore have been excluded.

1. The respondent's counsel submitted that the judge was correct to find that there was no impropriety in the police allowing the second covert conversation to proceed. Counsel submitted in writing that the circumstances of the present case are readily distinguishable from those in Swaffield. While there was a year-long gap between Swaffield's refusal to be interviewed by police and the commencement of the relevant covert operation, the applicant in the instant case did in fact consent to be interviewed by police, and made admissions to CO 377 on the same day that he was interviewed by police. In circumstances where the applicant willingly volunteered admissions to Luca during the first covert conversation, it cannot realistically be argued that the police elicited admissions from the applicant when the second covert conversation commenced almost immediately after the suspension of the police interview. Counsel contended that the second covert conversation should in effect be viewed as a continuation of the first. The trial judge was correct to characterise the second covert conversation as a 'free flowing conversation'. He was also correct in all the circumstances to find that there was no impropriety during the second covert conversation and that the applicant was not being 'importuned'. Finally, counsel submitted that even if the conduct of police in allowing the second covert conversation to proceed constituted an impropriety for the purposes of s 138(1) of the Evidence Act 2008, the primary judge was correct not to exclude the evidence upon undertaking the balancing exercise mandated by s 138(1).

1. Under s 295(2) of the CPA, a party to a proceeding for the prosecution of an indictable offence in the County Court[11] may by leave appeal to this Court against an interlocutory decision made in the proceeding. Importantly, s 295(3)(a) provides that, if the interlocutory decision concerns the admissibility of evidence, a party may not seek leave to appeal unless the judge who made the interlocutory decision certifies 'that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case'.
2. If, as occurred in this case, the judge refuses to certify under s 295(3), s 296(1) permits 'the party which requested certification' to apply to this Court for review of that decision. On a review of a trial judge's decision to refuse certification, the Court is required by s 296(4)(a) to 'consider the matters referred to in section 295(3)' - including whether the relevant evidence, if ruled inadmissible, 'would eliminate or substantially weaken the prosecution case' - and, having done so, may give the applicant leave to appeal against the interlocutory decision 'if satisfied as required by section 297'.[12]
3. In oral argument, counsel for the applicant accepted that the observations of Weinberg JA in Paulino as to the meaning of the expression 'eliminate or substantially weaken' - which have been cited with apparent approval in a number of subsequent cases[13] - were authoritative. Those observations are:[14]

[8] When the legislature in this State first made provision for interlocutory appeals in criminal matters, it was careful to stipulate that a trial judge should be satisfied, before certifying, that the exclusion of any item of evidence in dispute would 'eliminate or substantially weaken' the prosecution case. In erecting that barrier to certification, the legislature expressly distinguished challenges to evidentiary rulings from challenges to non-evidentiary decisions.

[9] It is important to emphasise the significance of that distinction. It is worth repeating that, before certifying, a trial judge must be satisfied that the exclusion of the evidence would 'eliminate or substantially weaken the prosecution case'. The word 'eliminate' has only one possible meaning. It connotes that there must be no case at all without that evidence. The alternative limb, namely 'substantially weaken', clearly involves questions of degree, and matters of discretion. The word 'substantial' is not a word with fixed meaning in all contexts. It is susceptible of ambiguity, and can conceal a lack of precision.[15] On any view, it should be read in context and, in accordance with the Latin maxim, noscitur a sociis.[16] Thus, 'substantially weaken', in the context in which that expression is used, suggests something not very far short of elimination, rather than merely significant, or important.[17]

[10] Before a trial judge certifies in relation to an evidentiary ruling, he or she must be satisfied that if the evidence is ruled inadmissible, its exclusion could realistically be expected to affect the outcome of the trial. In my view, having regard to the strong public policy reasons for discouraging interlocutory appeals in criminal matters in general, and particularly those involving nothing more than points of evidence, nothing short of a test approached with that degree of rigour will suffice.

1. During oral argument, counsel for the applicant accepted that the exclusion of the evidence of the applicant's admissions in the second covert conversation would not eliminate the prosecution case. He maintained, however, that the exclusion of the evidence would substantially weaken the prosecution case. In response, although the respondent's counsel accepted that the exclusion of the evidence would weaken the prosecution to a limited extent, they contended that the exclusion of the evidence would neither eliminate nor substantially weaken the prosecution case.
2. The position adopted by both parties that the exclusion of the impugned evidence will not eliminate the prosecution case is clearly correct. We thus need say no more about it.
3. Further, accepting (as we do) that substantially weaken suggests something not very far short of elimination - rather than weaken in a significant or important way - we consider that exclusion of the evidence of the applicant's admissions in the second covert conversation does not substantially weaken the prosecution case.
4. Views might differ as to the importance to the prosecution case of the applicant's admissions in the second covert conversation. Certainly, the admissions put him at the scene of a home invasion in Reservoir during which a Golf GTI was stolen, and support the fact that he was disguised with a balaclava, possessed a firearm and wore a satchel bag. Other details contained in the alleged admissions are, however, inconsistent with the prosecution case; in particular, the date and time of the alleged home invasion, and the applicant's assertions that he forced entry through the front door of the residence; fired a number of shots from his firearm; stole drugs from beneath MA's bed; assaulted MA with the firearm to the extent that he was unrecognisable; and that MA was armed. No doubt competent defence counsel would be capable of exploiting these inconsistencies at trial to the detriment of the prosecution case.
5. As we have said, however, notwithstanding the foibles attending the impugned evidence, counsel for the respondent accepted that its exclusion would weaken the prosecution case to a relatively minor extent. As we have also said, we accept that this is so.
   1. This Court observed in DG that:[18]

it must be borne in mind that the legislature has chosen not to confer a right of appeal in relation to interlocutory decisions in criminal trials. Rather, there are dual hurdles which must be overcome before this court will entertain an appeal against such decisions. First, there must be either certification, or a successful review against a refusal to certify. Secondly, the court itself must be satisfied that leave to appeal is warranted.

1. In our view, the application to review the judge's refusal to certify must fall at the first hurdle. We consider that the exclusion of the applicant's admissions will weaken the prosecution case only in a relatively minor way, since the core of a strong circumstantial case - the components of which are set out above[19] and need not be recapitulated - will be left intact. Ruling the evidence of the applicant's admissions in the second covert conversation to be inadmissible will not eliminate or substantially weaken the prosecution case.
2. Although all cases such as this must be determined according to their own particular facts, we note that there are parallels between the facts of this case and those of CGL[20] (one of the early cases dealing with the interlocutory appeal procedures provided for in the CPA). In CGL, on a trial for a sexual offence, the judge ruled that evidence of an admission made by the accused to the complainant was admissible. (Unlike the present case, however, the judge granted a certificate under 295(3) of the CPA.) The Court refused leave to appeal against the ruling, Maxwell P observing:[21]

Taking the evidence of the complainant at face value, the prosecution case would have retained very real strength, and would not have been 'substantially weakened', had the admission evidence been excluded.

If the admission were ruled inadmissible there remains the core of the Crown case, that is, the direct evidence of the complainant of the offences admitted by the accused. I do not think that the prosecution case would be substantially weakened if the Crown case proceeded without the admission.

1. Since we are of the view that the application for review of the trial judge's refusal to certify under s 295(3)(a) must fail, there is no occasion to consider the correctness of the admissions ruling. We note, however, that the sole case relied upon in this Court in support of the putative challenge to the admissions ruling, Swaffield,[23] was recently considered by this Court in Alhassan[24] (a case relied upon by the respondent in written submissions), and that the admissibility of admissions to covert police operatives in cases such as this must now be determined through the prism of s 90 (and, perhaps, depending on the particular circumstances, other provisions of pt 3.4) and s 138 (and, perhaps, another or other provisions of pt 3.11) of the Evidence Act 2008.

1. For the foregoing reasons we refused the application to review the trial judge's certification ruling.

[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.

[2] See [3]-[4] above.

[3] It will be remembered that the home invasion occurred less than two months earlier at about 1.20 am.

[4] On MA's account, he did not produce a firearm.

[5] MA's version is that entry was through a bedroom window.

[6] According to MA no shots were fired.

[7] On MA's version no drugs were taken.

[8] MA was not beaten until he was unrecognisable (or at all).

[9] DPP v Paulino [2017] VSCA 38; (2017) 54 VR 109, 112, [10] ('Paulino').

[10] R v Swaffield (1998) 192 CLR 159, 203, [98] (Toohey, Gaudron and Gummow JJ) ('Swaffield').

[12] Section 297(1) provides that, subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision if 'satisfied that it is in the interests of justice to do so', having regard to a number of enumerated criteria. (Subsection (2) provides that the Court 'must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial'.)

[13] See, e.g., Harris (a pseudonym) v The Queen [2017] VSCA 316, [56] (Maxwell P, Priest and Kyrou JJA); Peterson (a pseudonym) v The Queen [2019] VSCA 12; (2019) 57 VR 521, 523, [9] (Maxwell P and Taylor AJA); Marston v The King [2022] VSCA 253, [6] (Priest, T Forrest and Taylor JJA). See also DPP v Pace [2015] VSCA 18; (2015) 45 VR 276, 284, [26] (Priest and Beach JJA); Cano (a pseudonym) v The Queen [2020] VSCA 308, [50] (Niall, T Forrest and Weinberg JJA).

[14] Paulino, 112, [8]-[10]. Cf 119-20, [50] (Priest JA).

[15] In Re Bonny [1986] 2 Qd R 80, Ambrose J said at 82: 'In my view, when considered in the context of a definition that talks of a person who is 'wholly or substantially dependent on' another, the term 'substantially' connotes 'in the main' or 'essentially'.'

[16] The meaning of a word is known from the accompanying words.

[18] R v DG [2010] VSCA 173; (2010) 28 VR 127, 132, [31] (Buchanan, Weinberg and Bongiorno JJA) ('DG'). Cf Tuite v The Queen (No 2) [2015] VSCA 180, [27]-[30] and [34] (Weinberg and Whelan JJA and Croucher AJA).

[20] CGL v DPP (No 2) [2010] VSCA 24; (2010) 24 VR 482 ('CGL').

[23] Swaffield, 185-6, [35] (Brennan CJ).

[24] Alhassan v The King [2024] VSCA 233 (Priest, Beach and Boyce JJA) ('Alhassan').