R v Tyler

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.