AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 31 October 2013

TIMMIS, Michael Anthony v R

[2013] NSWCCA 240

Theft & propertyFirearms & weaponsPublic order & justice offences
APPEAL CRIMINAL LAW CONVICTION ADMISSIBILITY OF EVIDENCE DISCLOSURE OF EVIDENCE.

Citation: TIMMIS, Michael Anthony v R [2013] NSWCCA 240
Court: NSW Court of Criminal Appeal
Date: 31 October 2013
Judge(s): Bathurst CJ (with Fullerton J and Campbell J agreeing)

Background

The applicant was convicted by a jury on four counts arising from a planned armed robbery of the Campsie RSL Club. The counts included conspiracy to commit armed robbery, being armed with intent to commit an indictable offence, possessing a prohibited weapon, and possessing a disguise with intent to commit robbery. He was sentenced to a total effective term of seven years with a non-parole period of five years and three months.

The Crown's case rested on evidence gathered through a police informer, electronic surveillance, and physical surveillance. The informer had approached Campbelltown police in early March 2009 with information about the planned robbery, and a controlled operation was subsequently authorised under the Law Enforcement (Controlled Operations) Act 1997. Police used listening devices and conducted covert surveillance over several weeks as the plot developed.

The applicant sought leave to appeal his conviction on multiple grounds, challenging the validity of the controlled operations certificate, the admissibility of evidence obtained through it, and the reliability of the informer's evidence.

  • Whether leave to appeal should be granted where the grounds involved mixed questions of fact and law
  • Whether the Controlled Operations Certificate was valid, and if not, whether this affected the admissibility of evidence obtained during the operation
  • Whether the trial judge erred in admitting evidence under s 138 of the Evidence Act 1995 where there was a question about the certificate's validity
  • Whether the informer's evidence was unreliable or constituted perjury, and whether trial counsel had failed to follow instructions in cross-examining the informer

Decision

Leave to appeal. Although the applicant had not formally sought leave to appeal, the Crown raised no objection. Bathurst CJ granted leave given the nature of the grounds, which involved mixed questions of fact and law.

Controlled operations certificate and admissibility (Grounds 3 and 4). The applicant argued that the Controlled Operations Certificate was invalid and that evidence flowing from the operation should have been excluded. The trial judge considered all relevant factors under s 138 of the Evidence Act 1995, which requires a court to weigh the desirability of admitting evidence against the undesirability of admitting improperly or illegally obtained evidence. Bathurst CJ found no error in the trial judge's conclusion that the desirability of admitting the evidence outweighed the undesirability of doing so. The applicant also failed to identify any specific way in which the discretion had miscarried. Neither ground was made out.

Informer reliability (Grounds 2 and 7). The applicant challenged the informer's credibility and alleged that trial counsel had failed to follow cross-examination instructions. However, the applicant declined to waive legal professional privilege to allow a statement to be obtained from his former counsel, and he did not give evidence in support of the assertions made. Bathurst CJ reviewed the trial transcript and was satisfied that the applicant had been competently represented. Given the strength of the surveillance evidence, the overall case against the applicant was described as compelling. These grounds were dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a trial judge's s 138 discretion to admit evidence obtained during a potentially flawed controlled operation will not be disturbed on appeal unless the applicant identifies a specific error in the exercise of that discretion, not merely an assertion of inadmissibility.
  • Where an applicant alleges trial counsel failed to follow instructions, declining to waive legal professional privilege and failing to give supporting evidence leaves that ground without a factual foundation.
  • Under r 4 of the Criminal Appeal Rules, a failure to object at trial to the admission of evidence is a significant obstacle to raising that objection on appeal; the applicant must demonstrate an actual miscarriage of justice.
  • A Controlled Operations Certificate obtained under the Law Enforcement (Controlled Operations) Act 1997 that is arguably invalid does not automatically render evidence obtained during the operation inadmissible; the court retains a discretion under s 138 of the Evidence Act 1995.
  • Grounds of appeal characterised as alleging unreliable or perjured informer evidence will be treated as repetitive and dismissed where they raise no materially distinct argument from grounds already considered and rejected.

Legislation and Cases Referenced

Legislation:
- Law Enforcement (Controlled Operations) Act 1997 (NSW), s 5
- Evidence Act 1995 (NSW), ss 128, 138
- Criminal Appeal Rules, r 4

Cases:
- R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450
- R v Lanteri (1985) 4 NSWLR 359