R v Tyler - [1992] QCA 170

IN THE COURT OF APPEAL [1992] QCA 170

SUPREME COURT OF QUEENSLAND	C.A. No. 69 of 1992
Before the Court of Appeal

Mr Justice Davies
Mr Justice McPherson

Mr Justice Demack

T H E Q U E E N

PHILLIP ANTHONY TYLER

Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 26th day of June 1992

MINUTE OF ORDER:In relation to count 5 only the appeal is

allowed; conviction quashed; verdict of
not guilty entered; sentence set aside; no
new trial ordered.

In relation to all other counts, the application for leave to

appeal against sentence is refused.

CATCHWORDS:CRIMINAL LAW - ACCOMPLICES - appellant convicted

of inter alia supplying cocaine following
evidence given by undercover policeman -
whether policeman can be considered an
accomplice - Criminal Code s.632

EVIDENCE - IDENTIFICATION - appellant convicted of inter alia supplying cocain following identification by undercover policeman introduced to the alleged dealer by third man not called to testify - no evidence of how

identification made - whether conviction
ought stand on that count

Counsel:S. Keim for the Appellant

J. Costanzo for the Respondent

Solicitors:Legal Aid Office for the Appellant
Director of Prosecutions for the Respondent
Hearing Date:5 June 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 69 of 1992

T H E Q U E E N

PHILLIP ANTHONY TYLER

Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 26th day of June 1992

Phillip Anthony Tyler was charged with seven counts of supplying a dangerous drug. In one instance, the dangerous drug was cocaine, and, in all other instances, cannabis sativa. The evidence in each case came from an undercover police officer. The accused was convicted and sentenced to two and a half years

imprisonment on the charge of supplying cocaine and one and a

half years imprisonment on the other charges.

He appeals against conviction and seeks leave to appeal against sentence. In the appeal against conviction two separate issues arise. First, is an undercover police officer an

accomplice, so that the warning required by s. 632 of the Criminal Code must be given? Secondly, was the summing up in

respect of the identification evidence in count 5 adequate?

Is an undercover police officer an accomplice?

This question was referred to in the judgments in The Queen
v. Charles Carmelo D'Arrigo (C.A. No. 220 of 1991) judgment
delivered 11 December 1991. The Chief Justice left the question

open and de Jersey J. expressed the opinion that the person in that case who was working undercover for the police was an

accomplice. The issue then falls for decision.

Section 632 reads:-

"A person may be convicted of an offence on the uncorroborated testimony of an accomplice or accomplices, but the Court shall warn the jury of the danger of acting on such testimony unless they find that it is corroborated in some material particular by other evidence implicating that person."

Section 632 appears to be the only section in the Criminal

Code in…

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 R v Tyler

Details

AGLC: R v Tyler [1992] QCA 170
Case: [1992] QCA 170
Decision Date: 26/06/1992

CaseChat Overview and Summary

Phillip Anthony Tyler was charged with seven counts of supplying dangerous drugs. He was convicted on all counts and sentenced to two and a half years imprisonment for the supply of cocaine and one and a half years imprisonment for the other charges. He appealed against his conviction and sought leave to appeal against his sentence. Two issues arose in the appeal against conviction. The first issue was whether an undercover police officer can be considered an accomplice under s. 632 of the Criminal Code. The second issue was whether the summing up in respect of the identification evidence in count 5 was adequate. The court held that an undercover police officer is not an accomplice as they are employed to detect crime, not to commit it. Therefore, the trial judge was correct in not directing the jury in terms of s. 632. In relation to the identification evidence, the summing up did not give sufficient direction to the jury about the inadequacies in the description of the third person and the dangers of acting on committal identification. Therefore, the conviction in respect of count 5 cannot be sustained. The appeal should be allowed, the conviction in respect of count 5 should be quashed, and a verdict of not guilty in respect of that count should be entered. There should be no retrial. The application for leave to appeal against sentence should be refused. The final orders were that in relation to count 5 only the appeal is allowed; conviction quashed; verdict of not guilty entered; sentence set aside; no new trial ordered. In relation to all other counts, the application for leave to appeal against sentence is refused.

Orders