A former AFP police officer and his twin brother, found guilty of spying on their female renters with hidden cameras, have launched an appeal claiming issues with police conduct, including an alleged cover up when it came to seizing evidence.
Joshua Tiffen and his identical twin brother Kenan were found guilty of three counts of capturing visual data earlier this year.
Barrister Slade Howell represented the brothers when the appeal was heard in the ACT Court of Appeal on Thursday (13 October) before Justice Chrissa Loukas-Karlsson.
Each application challenged court rulings that evidence obtained by police – namely a Samsung phone and HP Laptop – were admissible.
“We are asking Your Honour to bring a real and independent review of the evidence at the trial,” Mr Howell said.
The pair had originally been convicted by Magistrate Glenn Theakston.
Mr Howell claimed there was an “illegality” over how the HP Laptop was obtained, as it had been seized on an expired warrant.
“There was a 30 day warrant, and it was seized on day 33,” Justice Loukas-Karlsson clarified.
Mr Howell said while there was a “narrow issue” about the timing of the seizure, he said the larger issue was the behaviour of the police officer involved in its seizure once it had been discovered the warrant had expired.
He claimed this officer “engaged in a deliberate cover-up of the breach”, which Magistrate Theakston had agreed had occurred.
“There was a deliberate course of conduct to obscure the law by police, but His Honour still decided to allow it,” Mr Howell claimed.
“His Honour said it was ‘unfortunate’, we call it disturbing.”
Mr Howell also pointed out inconsistencies when it came to Joshua Tiffin’s Samsung phone, which were acknowledged at the time by the court.
In chief evidence a witness claimed the phone had been seized just after midday at Majura Police Complex. However the evidence bag showed it had been bagged that evening during the police search on Joshua Tiffin’s property in Forde.
“A fiction was created to empower the seizure,” Mr Howell claimed.
He argued there were no notes or records the phone had been seized in Majura, nor was the mobile’s number on a warrant to seize two other phones.
Mr Howell suggested police had allowed Joshua Tiffin to take the phone with him so then it would fall under the search warrant for the Forde property.
He said this was “concerning” as it “opens the gate to police conduct that one could composite would not be acceptable”.
Mr Howell also pointed out a Section 3LA order had been executed on Joshua Tiffin to compel him to reveal the PIN to the phone after it had been seized.
“You can’t execute a 3LA after you’ve seized something,” he argued.
Mr Howell said all of this “wasn’t consistent” with the treatment of other electronic devices discovered during the search.
Kenan Tiffin’s Huawei phone and the aforementioned HP Laptop weren’t seized, but “moved” for analysis to determine whether or not seizure was needed.
“But despite not knowing what was on the Samsung, [police] decided to seize it instead,” Mr Howell said.
“It’s a different approach.”
Justice Loukas-Karlsson will hand down her judgement at a later date.