Both sides to appeal after judge blasted 'cover up' in case of brothers who allegedly secretly filmed tenants

Lawyers will continue the fight over the case of an ex-police officer and his brother accused of spying on their tenants as both sides will lodge appeals after a judge dismissed some, but not all, of the evidence.

Former Australian Federal Police officer Joshua Rod Tiffen and his identical twin, electrician Kenan Lee Tiffen, were found guilty of their charges by the ACT Magistrates Court in 2022.

The twins owned a house in Canberra where they allegedly used several hidden cameras in the bedrooms to watch the private activities of three female tenants.

Earlier this year, they were partially successful when they appealed to the ACT Supreme Court. Justice Chrissa Loukas-Karlsson struck out evidence from a laptop and remitted their charges to the Magistrates Court for redetermination.

But on Monday (16 October), the Tiffens’ lawyer, Tom Taylor of Hugo Law Group, told this lower court that his clients had filed an appeal to the ACT Court of Appeal challenging some of her orders.

It was his understanding that the prosecution would file a cross-appeal. This means the prosecution will also seek to appeal the Supreme Court’s decision.

Magistrate Theakston said this process would mean the higher court could reverse Justice Loukas-Karlsson’s decision or that the Tiffens may be more successful.

The prosecutor said several different outcomes could result from this process, but based on the Supreme Court’s current ruling, she would continue with the prosecution.

She agreed to wait for the Court of Appeal to decide before deciding what to do in the Magistrates Court, while Magistrate Theakston was comfortable “pausing” to see what happened in the higher court.

The appeal may take place in May 2024, but it could take months to resolve.

Magistrate Theakston continued the brothers’ bail and adjourned until June 2024 for a mention of the matter before him.

Last year, he found the Tiffens guilty of three counts of capturing visual data each.

The brothers appealed, arguing that evidence obtained by police was inadmissible. In September, Justice Loukas-Karlsson announced the pair had been partially successful.

She said it was clear the police officers involved in the case made errors when handling important pieces of evidence and found that evidence from Joshua’s laptop should not have been admitted as it had been seized unlawfully.

However, she dismissed the part of the brothers’ appeal that related to the seizure of Joshua’s mobile phone.

She ordered the six guilty verdicts to be set aside and the matter remitted to the Magistrates Court for redetermination.

“If police officers are to uphold the law, then police officers should obey the law. The court cannot condone a cover-up,” she said.