By Paul Gregoire and Ugur Nedim
New South Wales police officers attempted to conduct an unlawful strip search on Australian citizen Luke Brett Moore in April 2017, in a van in front of Goulburn’s Hibernian Hotel. But Moore knew his rights and resisted the search. He was then charged with hindering police and convicted in the Local Court. However, the conviction was later overturned on appeal.
Both then and now, the routine use of strip searches by New South Wales police raises much criticism in the civil sector, as in many circumstances these are conducted in breach of the law.
So, this was all in the background when Moore rang Newtown police station on 24 February 2021.
Indeed, Moore appeared to be on a mission to complain about police strip search policy to multiple stations that evening, having rung others prior to when he spoke to then constable Daniel Kenneally about the matter, which, the NSW District Court found recently was “done in a polite fashion”.
Kenneally appears to have searched Moore online during the call and found a site where the caller had been critical of a specific Goulburn officer in relation to his use of strip searches, suggesting this was paedophilic in nature, and that the officer shouldn’t be a member of the NSW Police Force.
At a point during the call or immediately afterwards, Keneally spoke to officer Daniel Taleski about Moore, at which point he seems to have conflated the online statements about a particular NSW police officer, with the caller’s more tempered and measured statements over the phone.
In the hours afterwards, Kenneally wrote a detailed statement accusing Moore of telling him that he was going to kill a specific Goulburn police officer, when he’d said nothing of the sort. And this saw Moore then spend 3 weeks in prison, and months being prosecuted before the matter was dropped.
Fabricating evidence
Then 25-year-old Kenneally appeared at Sydney’s Downing Centre Local Court on 21 November last year, after having pleaded not guilty to one count of fabricating false evidence, contrary to section 317(b) of the Crimes Act 1900 (NSW), which is an offence that carries up to 10 years imprisonment.
NSW Local Court Magistrate Rodney Brender rejected Kenneally’s defence, which involved having made an honest and reasonable mistake on the night Moore called in, and his Honour further dismissed the claim that the constable had felt pressured by higher-ranking officers into writing it.
The court found wide discrepancies between what had been said in the recording that Moore was making without Kenneally’s knowledge and what the officer went on to write in his statement, as the civilian did not threaten anyone’s life or even mention the specific officer he supposedly threatened.
Magistrate Brender further set out that Kenneally made these claims knowing full well that his statement could be used to mislead a judicial proceeding, and in fact, after Moore was imprisoned for three weeks and prosecuted for three months, the police officer did nothing to right this wrong.
And so on the 1 February this year, his Honour then sentenced the still instated officer to a 15-month-long intensive correction order (ICO), which is the strictest type of order a civilian can serve in the community, and in Kenneally’s case it involves 200 hours of community service.
Questionable intent
Kenneally appealed his conviction in the NSW District Court, raising the ground that the magistrate had failed to precisely articulate how he considered the man had purposefully fabricated evidence, which led to him being charged with three offences that carry up to 16 years imprisonment.
The gist of Kenneally’s claim was either during or after the call, he gave Taleski a rundown of what Moore was stating, and this had resulted in him mistakenly conflating accusations the caller had made to him, even though he’d read about this online.
But NSW District Court Judge John Pickering found on appeal that what had occurred in the Downing Centre on sentencing, had seen the magistrate “clearly” articulate his views on why he’d considered Kenneally had acted in an unlawful manner.
His Honour outlined that it is possible for an officer taking calls at a busy police station to be listening to a caller and reading statements on the internet to then become confused and panicky in the moment about what the person on the other end of the line might be about to say.
But Judge Pickering asserted that’s a much different matter from then having sat down after a call and specifically detailing a conversation in such a thorough manner to the point where a two-way exchange was detailed, whereby Moore clearly articulated that he was going to kill a specific officer.
The judge hearing the appeal explained that the matter regarding Kenneally reading what Moore wrote about a Goulburn officer being dropped from the police force online, and then recounting this in his statement as involving his having heard this as a threat to kill the man was a stretch too far.
His Honour found that to have hung up and within the space of a couple of hours produce a report that was so different from the recorded conversation, which the officer didn’t know existed, to the point where a man was said to state that he would kill an officer, couldn’t be dismissed as a mistake.
The conviction sticks
Judge Pickering admits that Kenneally could have found the call annoying. But the constable makes other factual comments that are so far from the truth that the intentionality to mislead is obvious, even to the point of Kenneally saying, “I recall interrupting Moore”, when he never actually did.
Even when taking into account that Kenneally was a new police recruit, the judicial officer found that the constable must have had a clear understanding of the importance of his role and the repercussions that making such a false statement could result in.
So, Judge Pickering ruled on 24 June this year that the prosecution had shown beyond a reasonable doubt that former officer Kenneally had falsified truth and, therefore, the conviction remains and, as there was no appeal against the sentence itself, the case was dismissed.
