Sultan v R [2008] NSWCCA 175

New South Wales Court of Criminal Appeal

CITATION: Sultan v R [2008] NSWCCA 175

HEARING DATE(S): 12 June 2008

JUDGMENT DATE: 24 July 2008

JUDGMENT OF: Spigelman CJ at 1; Price J at 47; McCallum J at 48

1 Appeal allowed DECISION: 2 Quash the conviction 3 Direct a verdict of acquittal

CATCHWORDS: CRIMINAL LAW – Property offences – Use of a false instrument – Meaning of "use" – Crimes Act 1900, s 300(2)

LEGISLATION CITED: Crimes Act 1900

Bailey v United States 516 US 137 (1995) CASES CITED : R v Lyons [1984] 2 NSWLR 476 R v Steele [2007] 3 SCR 3

PARTIES: Wayne Denis Sultan (Appellant) Regina (Respondent)

FILE NUMBER(S): CCA 2007/3554002

COUNSEL: S Cousins (Appellant) N Noman (Respondent)

SOLICITORS: Canning Craymer Lawyers (Appellant) Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0260; 06/11/0269

LOWER COURT JUDICIAL OFFICER: Toner DCJ

LOWER COURT DATE OF DECISION: 3 May 2007; 20 July 2007

IN THE COURT OF CRIMINAL APPEAL 2007/3554002

SPIGELMAN CJ PRICE J McCALLUM J

Thursday 24 July 2008 Wayne Denis Sultan v Regina

The appellant was convicted of one of 17 counts, with which he had been charged of using a false instrument contrary to s 300(2) of the Crimes Act 1900. The Crown case was that he had participated in a fraudulent loan scheme in which he purported to act for a man pretending to be the owner of real property which was to be the security the subject of a mortgage upon which funds would be advanced by a third party. With respect to the count of which he was convicted, the trial judge found that the appellant knew that this person was not the true owner and therefore that the documents were fraudulent. Implicitly, his Honour also found that the appellant's participation in the transaction amounted to "use" of the fraudulent mortgage instrument.