The offense of fabricating evidence in New South Wales – a crime

A police officer, the son of former New South Wales premier Kristina Keneally, has avoided a full-time jail sentence after being convicted of making a fabricated statement that landed a man behind bars.

Daniel John Keneally, now 25, was sentenced to a 15-month Intensive Corrections Order (custodial sentence served in the community) in Downing Center Local Court on February 1, 2024. He is to complete 200 hours of community service and pay a $2,000 fine.

This was despite the Deputy Director of Public Prosecutions urging Judge Rodney Brender to order full-time imprisonment instead.

Keneally was found guilty in November 2023 of charges related to an incident in which he wrote a statement containing numerous falsehoods about a phone call made by 34-year-old Luke Brett Moore to Newtown Police Station in February 2021.

He falsely accused Moore of saying he wanted some police officers ‘gone’ and ‘off this planet’, even adding that when Moore was asked what that meant, he replied:
“Excellent. Dead.”

Moore was charged with one count of using a transport service to threaten to kill and two counts of using a transport service to threaten, harass or insult, after Constable Keneally provided details of a complaint to the Fixed Persons Unit. He was subsequently denied bail and held in a maximum security correctional facility for several weeks.

However, Moore secretly recorded the conversation and was able to provide it to the prosecution, who dropped the charges after confirming that the call contained no death threats.

Although he called the station to discuss the use of strip search powers, it was found that he did not threaten the lives of then NSW Police Commissioner Mick Fuller and Goulburn police officer Ed Taylor as alleged.

Moore revealed that officers would have had access to the actual recording of the call within days of him being charged, but the charge was only dropped when the Director of Public Prosecutions took over the matter.

A local court magistrate awarded him $10,000 in costs after the charges were dropped.

Moore complained Law Enforcement Commission about Keneally’s conduct, who recommended that he consider seeking advice from the Director of Public Prosecutions about prosecuting Keneally.

During sentencing, Judge Brender commented that Keneally had “no apparent personal or financial motive” and was a “young and inexperienced” police officer at the time of the offence.

Despite being found guilty, Keneally continues to maintain his innocence and has appealed the case, which was first heard on 6 February 2024 in the District Court.

While he accepts the differences between his statement and the recording of the call made by Moore, Keneally argues that he did not intend to mislead, instead claiming it was merely a ‘mistake’.

During his sentencing hearing, Keneally he claimed he had inadvertently mistaken the phone call for material from Mr Moore’s website called “isuepolice.com”. He also argued that he was distracted by other duties and was too tired from the previous night shift.

Magistrate Brender ruled that he could not accept this evidence or that there might have been a mistake
“inadvertently,”.

“The material he wrote had no other possible source and was essentially a fabrication. It was intentional. He must have known he didn’t remember it being said, and it was untrue to say he remembered it.”

“Evidence of threats to kill a police officer, he knew, would inevitably lead to charges and a trial … it (his statement) is a fabrication and would mislead the appropriate tribunal.” he said.

Keneally’s lawyer applied for the intensive corrections order to be suspended, saying an appeal was now pending. This was granted by a judge, meaning Keneally will not have to serve a sentence pending the outcome of an appeal.

Producing evidence about offenses and punishments in New South Wales

In New South Wales it is an offense to fabricate evidence as set out in Sec 317 of Crimes Act 1900 (NSW).

The prosecution will have to prove beyond reasonable doubt that you intended to mislead any tribunal in any trial by:

  • suppressing, concealing, destroying, altering or falsifying anything knowing that it is or may be required as evidence in any legal proceedings;

  • fabricating false evidence (other than perjury), or

  • knowingly use fabricated false evidence.

Evidence is constructed broadly and will include physical objects, pictures and statements provided to the police or made by the officers themselves.

A trial is defined as a proceeding before or before a judicial tribunal (ie a court or other body authorized by law) in which evidence may be taken under oath.

The maximum prison sentence is 10 years if the case is heard by the district court. However, the misdemeanor will only be heard in the district court, where the public prosecutor or the accused will decide to do so.

This means that it will normally be dealt with in a local court, which is jurisdictionally limited to impose a maximum sentence of 2 years imprisonment and/or a fine of $11,000 per offence.

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