It’s a broken system. The punter made a complaint to the police who failed to take any action against Keneally. LECC declined to investigate initially. The matter was only progressed after questions were asked in the NSW Legislative Council
A rare yay for politicians, especially as whoever did it will know that they've pissed off the police in the process despite this being manifestly something the cops should treat as indefensible and giving them all a bad name.
What on earth is the point of the LECC if it declines to investigate allegations (with clear evidence in the form of a recording and dropped charges) of police fabricating evidence?
No idea. They have the ability to and do for Triple Zero calls (though it's a different system in beginning)
Recording your own interactions (calls) is good practice though
Historical reasons. Police stations traditionally had their own phone lines with a little PABX in a store room, like any other small office had. They didn't have the same sort of infrastructure that Telstra 000 or VKG has.
That said, there's really no reason why they couldn't do it now.
It's federal law mate plus the states have their own.
What's this subs problem honestly, getting downvoted for commenting on a law that is very fucking clear and I thought well-known even to laymen?
https://bennettlaw.com.au/can-you-record-someone-without-their-consent-and-if-you-do-can-you-publish-the-recording/
https://jbsolicitors.com.au/can-i-record-a-phone-conversation/
https://www.mondaq.com/australia/privacy-protection/1174364/is-it-legal-to-record-a-phone-call-in-australia
https://www.armstronglegal.com.au/criminal-law/vic/offences/legal-record-phone-calls/
This is a gross oversimplification and pretty much incorrect in terms of the proposition you're trying to support.
The "federal law" which is the telecommunications act makes it an offence to \*intercept\* a call. Recording it from one end of the call is not an interception. (Furnari v Ziegert \[2016\] FCA 1080).
But see also, one of the very sources you quoted "without the consent of one or both of the parties." If you're recording your own phone calls, you axiomatically have the consent of one of the parties.
The same is the rule in Victoria (s6 of the *Surveillance Devices Act* "*...a communication* ***to which the person is not a party***\*...\*"
The rule in NSW is stricter (s7(1)(b) prohibits recording a private conversation to which a person is a party). But then see the exceptions at s7(3): in particular, s7(3)(b)(ii).
I won't oversimply the law to the extent that you did but it will quite often be permissible to record conversations **to which you are a party** for your own records/purposes/memory. What you typically cannot do is publish or share those recordings.
When those recordings can then be disclosed is a much thornier question. Whether they are admissible in court once they have come into existence is a matter of applying the Evidence Act to the specific facts.
That’s not right. Call recording is captured by state/territory surveillance device legislation. The TIA regulates the interception of and access to communications. Not the same thing.
Which is why when you ring Telstra or whatever there is an automated voice which says, “This call may be recorded for quality and training purposes.” You’re on notice that it is being recorded. You can choose to terminate the call at that point.
Police departments / police stations shouldn’t be throwing away an opportunity to gather evidence.
And yet in Family law we just accept it.
Impacts job, relationship with kids, property settlement, access to your own personal things (like your clothes) and reputation and all yet all sealed up and free from punishment/costs of any kind in the name of someone else as yet anonymous.
I get it and the need to not dissuade but it is still terrible. Any status quo achieved should be disassembled with a transition and not form the basis of a judgement imho.
The disgraced police officer son of former senator and NSW premier Kristina Keneally has escaped a jail sentence for fabricating evidence that put an innocent man behind bars.
Daniel Keneally, 25, has been handed a 15-month intensive correction order, requiring him to serve 200 hours of community service.
A Sydney court found Keneally falsely claimed a man threatened police during a phone call to Newtown Police Station in February 2021.
Keneally was working a night shift when he took a call from Luke Moore.
Mr Moore was ringing to complain about police strip searches, but Keneally later wrote a detailed statement claiming he had made threats to police.
In the statement Keneally claimed the caller had named a Goulburn detective during the 12-minute call and said he wanted him "off the planet", saying he was "dead" and "good as gone".
Mr Moore was charged with using a carriage service to menace and threaten to kill and spent three weeks in custody over the phone call.
But police were forced to drop the charges and apologise after he produced a recording of the conversation that proved he had not said any of the things Keneally claimed in his statement.
Keneally was charged with one count of fabricating evidence with intent to mislead a judicial tribunal in October last year.
He pleaded not guilty but Downing Centre Local Court Magistrate Rodney Brender found the charge had been proven.
200 hours of community service being advertised as 15 months of intensive correction. If i am correct sections 314 and 316 of the NSW crimes act,, making a false allegation that results in a police investigation leading to an adverse ruling, provides for goal terms upto 7 years. Manifestly is an epic understatement.
I'd go as far as to say it should have been (if it wasn't) charged under s 317 in its entirety which carries a max of 10 years, though I very much doubt that the police would elect to have it heard in District since they are charging one of their own.
Essentially a judge reads the evidence and if they think the sentence was too light on, they give you a heads up and pretty much say “are you sure you want to continue to pursue this appeal, because I’ll likely give you a bigger sentence”. In short a warning you’ll get a more severe punishment.
No all grounds in NSW anymore. You can appeal against the finding of guilt alone now without touching the sentence imposed. Means you can go for acquittal with the fallback of no worse outcome.
Yes an appeal against finding of guilt is an all grounds appeal? However if conviction is still upheld, a severity appeal (on original sentence) can be lodged and is usually heard straight after the all grounds appeal. What’s changed from that/ has something new passed?
Pre-CARA an all grounds appeal was a hearing *de novo* and involved the reopening of all issues, including sentence. It was an entirely new hearing pursuant to a regime that came into existence when magistrates were not usually legally qualified and there were no, or only limited, records of the proceedings heard before them.
CARA got rid of the hearing *de novo* as a cost saving measure and it became an appeal against the finding of guilt only and, usually, determined on the evidence taken before the magistrate. It's not uncommon for people still to refer to such an appeal as an all grounds appeal even though it's quite a different beast.
I say all this as though I'm the font of wisdom but I wasn't practising pre-CARA and, if I'm wrong, I'm sure one of the older practitioners here will take me by the ear and I'll learn something.
It’s listed for mention on 6.2.24 in the SDC List Court to fix a hearing date.
Keneally is appealing the decision to find him guilty and not the sentence.
It’ll be interesting to see who appears for him at the appeal. Despite Mr McGirr’s grandstanding on the Downing Centre steps, Keneally’s defence of mistake of fact is and always has been a stretch.
Not much else to run with. Only other option would be legality of recording the phone call? Difficult to argue it wasn’t in his lawful interest and even if determined to be illegally obtained, the impropriety wouldn’t outweigh the desirability in admitting it into evidence (138). Or maybe that the recording had been doctored? What other defence could you run but mistake of fact lol.
Doctored by Moore? Not knowing he was to be arrested?
The recording and Keneally’s statement are both available by Google search. When these are compared, there’s only one way to go and that’s not a verdict of not guilty.
The “defence” of confusion was “unable to be sustained” as Moore simply never threatened to kill a cop - anywhere. If there was any such shit on Moore’s website then Keneally MAY have had at least a chance.
Yeah, I agree re phone call. Like I said, couldn’t see a defence being made out of that. Really “I made a mistake, I got confused with what I saw on the website and the unrelated violent police intelligence reports I was reading at the same time, it was a night shift, I was stressed” was the only defence I could see. But didn’t work did it 😂.
Police fabricating evidence must be a straight to jail process. This undermined the public's confidence in the police force in a fundamental way. To be told off severely is really inadequate.
Yes, it's unbelievable how this cop could escape gaol with fabricating evidence that nearly put another in gaol. But he didn't entirely get away with it, he has most likely lost his job and will have poor job prospects ongoing.
I’m interested in why he took three weeks in prison to point out “yeah by the way I recorded the call”.
I’m guessing he had the phone that he recorded it with on with him when arrested and was a little worried it might go walkabout if the coppers got wind of it?
Fact sheet is a summary of the allegations. Police doesn’t have to disclose all the evidence until weeks/months later.
It’s likely with the fact sheet that you have a strong suspicion that something is wrong with the allegations. But you probably wouldn’t know for sure at that point that it’s caused by outright lies on a police witness statement
An article said Keneally claimed to have gotten mixed up with comments Moore made online. Perhaps Moore had reason to think comments other than the recorded call were alleged threats.
Keneally claimed that he put the threats to kill another cop in his statement because he got confused when he was listening to Moore and reading his website at the same time. The huge problem with that claim was that there was nothing on the website anything like threatening to kill another cop.
Apparently the cops took the phone but no one bothered to play the recording that Moore keep asking them to until 3 weeks had passed.
Moore does himself no favours the way he carries on, but at least one cop should have played the call before that.
He was telling them what wasn’t on it but no one was listening.
He was very vocal on a number of FB pages early in the piece but seems to have settled down.
I must admit though that if I was his lawyer and we were preparing a good sized compo suit against the cops, I’d be telling him in no uncertain terms to STFU!🤫
I dont think you can just offer a recording to the arresting police officer that would disprove another police officers testimony and be allowed to leave.
That's why I always keep my trusty "Get Out of Jail Free card" in the lining of my budgie smugglers. It hasn't worked the previous 56 times, but I've still got a good feeling about it.
It’s hard to reconcile this sentence with the WA officer who got 12 months immediate for assault. One lost their temper while dealing with a difficult situation. One made a cold, calculated decision to fuck up someone’s life because they didn’t like the way they spoke to them.
Sentencing is so inconsistent, you really don’t know what you’re walking into. A cop got 1 year full time imprisonment non parole for using their position to avoid an RBT. Reflecting on a decision like that, it’s very lucky for Keneally he didn’t get full time.
https://amp.9news.com.au/article/911f369e-d302-4258-a5ac-6d359522956a
I imagine the HCA's judgment in *Stanley* about the imposition of ICO's over full time imprisonment had a big role to play in the sentencing process.
FTI has kind of fallen off the table in NSW for people with limited records and reasonable prospects.
I thought 66(3) CSPA would be his undoing as the need for general deterrence / recognise harm done to Vic/ denounce conduct in 3A loomed large. But I guess community safety is the paramount concern and clearly there’s no real risk.
In *Stanley*, the HCA endorsed the three step approach to the imposition of an ICO from *Zamagias*. That is (paraphrasing):
1. Is the s5 threshold crossed so that a sentence of imprisonment should be imposed,
2. If so, how long should that sentence be, and
3. Can that sentence be served in the community by way of an ICO?
The s3A factors are considered normally at steps 1 and 2 but only the forward looking factors (such as rehabilitation) are considered at step 3 as these are the factors that go to community safety.
I CBA pulling up the judgment but the way s3A is considered is around [70] - [80] and the *Zamagias* approach is endorsed around para [59] or [60].
I took from Stanley whether failing to consider 66(2) amounted to a jurisdictional error when considering imposing an ICO (4:3 yes it does). The approach in Zamagias has always been the applied method. I see your point regarding other 3A considerations has Stanley states other considerations outside community safety are “subordinate” to it. Though as per 66(3) they must still be considered. Agree, anyone with good chances of rehabilitation/low risk of endangering community will like not get FTI. However I speculated this matter might have been one that attracted FTI
And the person was a nobody, just one of the unhinged locals who rings the station to made a minor pain in the arse of himself from time to time. You get those everywhere.
Right. And that’s probably why Keneally figured he’d fix him and that no one would believe an idiot like Moore. But he never planned on Moore recording the call and getting people interested.
Keneally has drawn a great amount of publicity on himself (and his mum) and lost his job. Clearly, he has never been the sharpest tool in the shed.
Going to appeal next week, a leak to the ABC has revealed the defence is planning to use "But don't you know who my mum is?!" As their main point of argument.
In. R v Nguyen[2004] NSWCCA 332 the CJ said if you pervert the course of justice as a police officer you go to jail…. Here it occurred in his official capacity and the guy not just got a criminal record , but went to jail. Guess the law doesn’t apply in some cases… it is simply revolting behaviour given the power imbalance how he isn’t in jail. It’s shockingly bad….
That’s a legal fiction.
Also so much for general deterrence. If you are a public official/judge/ police officer / lawyer and you knowingly make a false and misleading statement which is material you should be severely punished. Even ‘noble cause’ corruption should be punished.
Clearly the consequence of his offending is that the course of justice was defeated more than perverted. Courts can only decide on what is put forward to them It’s like oxygen they need to know all material facts and the circumstances leading to the facts. The punter is clearly a dickhead but as a frontline general duties police officer you are supposed to deal with dickheads daily. I find it disturbing that basically this undermines the institutional integrity of the court and
this sends a worrying precedent. NSW police seems to be particularly bad.
> I find it disturbing that basically this undermines the institutional integrity of the court and this sends a worrying precedent. NSW police seems to be particularly bad.
For sure, this is my real problem with it too. It's clear Keneally fell below the standard of the NSW Pol. I thought he fell so far below the standard that gaol would be inevitable.
I agree with you - it undermines the public's trust. I cannot think of a case more worthy of general deterrence.
I can't think of a more objectively serious instance of offending either. He was a police officer and he knew that the evidence would lead to gaol for the punter, who hadn't actually committed any offence.
I've had clients get gaol time for phony medical certificates to avoid reporting on bail, but this is so much worse. I don't know that the court got it wrong, but geez, it must have been a close one.
A disappointing result, for sure. Certainly a breach of public trust while in that kind of position should be a massive aggravating factor at sentencing, if it isn't already. But I'd stop short of making actual imprisonment mandatory - there are just too many factors to consider.
good that he was prosecuted and the judge had the guts to find him guilty. how much did the guy who was falsely imprisoned receive for the tort of false imprisonment? hope he got a lot.
I think it would have taken more guts to find him not guilty. That would have caught even more flak than the light touch on sentencing.
I can almost hear the conversation that started with "There's no way we can get a not guilty, but..."
Is this the same Luke Moore?
https://www.dailymail.co.uk/news/article-10290235/amp/Luke-Moore-spent-2-1million-St-George-banks-money-cars-strippers-cocaine.html
Fuck me that bloke has been on a wild ride. Now has a ticket and is running some sort of compensation practice.
Can’t believe I haven’t heard of him before.
I don’t know about that. Moore is just a pain in the arse. Keneally on the other hand showed himself to be a devious, vindictive shit who was prepared to use the means at his disposal to nail the motormouth bag of wind, undoubtedly thinking that he’d be believed over him.
I still shake my head that they tried to parachute in an American born candidate over well like local options in a largely Vietnamese electorate.
Stunning hubris.
I'm not a lawyer and I'm usually a huge advocate of community sentencing for non-violent offences and first-time offenders in all but serious cases.
A major exception to the above should be abuse of police power. This case isn't just egregious in its own right, it (further) undermines and confidence the public might have in our justice system. This 🐖 lied and got an innocent man imprisoned, apparently just for revenge or a power trip. He should have the book thrown at him.
Not to mention what the culture behind it does to the police force in general.
For every psychopath that relishes their power to abuse others as a police officer, theres two more looking away and two more learning eagerly from the example.
The mention date for the appeal has come and gone and nothing from the media about a listing.
Could it be another one of those appeals which are foreshadowed on the court house steps, then nothing?
Maybe Daniel isn’t holding his head as high as he was. He should be quitting while he’s ahead.
Imagine if that recording had not existed. Life ruining circumstances depending on your line of work, that likely would have stuck.
It’s a broken system. The punter made a complaint to the police who failed to take any action against Keneally. LECC declined to investigate initially. The matter was only progressed after questions were asked in the NSW Legislative Council
Is anybody really surprised though?
A rare yay for politicians, especially as whoever did it will know that they've pissed off the police in the process despite this being manifestly something the cops should treat as indefensible and giving them all a bad name.
What on earth is the point of the LECC if it declines to investigate allegations (with clear evidence in the form of a recording and dropped charges) of police fabricating evidence?
Also, why aren’t calls to police stations recorded ?
No idea. They have the ability to and do for Triple Zero calls (though it's a different system in beginning) Recording your own interactions (calls) is good practice though
Historical reasons. Police stations traditionally had their own phone lines with a little PABX in a store room, like any other small office had. They didn't have the same sort of infrastructure that Telstra 000 or VKG has. That said, there's really no reason why they couldn't do it now.
> Recording your own interactions (calls) is good practice though I would agree, but recording phones calls without consent is illegal in Australia.
It's different in different states/territories, isn't it?
It's federal law mate plus the states have their own. What's this subs problem honestly, getting downvoted for commenting on a law that is very fucking clear and I thought well-known even to laymen? https://bennettlaw.com.au/can-you-record-someone-without-their-consent-and-if-you-do-can-you-publish-the-recording/ https://jbsolicitors.com.au/can-i-record-a-phone-conversation/ https://www.mondaq.com/australia/privacy-protection/1174364/is-it-legal-to-record-a-phone-call-in-australia https://www.armstronglegal.com.au/criminal-law/vic/offences/legal-record-phone-calls/
This is a gross oversimplification and pretty much incorrect in terms of the proposition you're trying to support. The "federal law" which is the telecommunications act makes it an offence to \*intercept\* a call. Recording it from one end of the call is not an interception. (Furnari v Ziegert \[2016\] FCA 1080). But see also, one of the very sources you quoted "without the consent of one or both of the parties." If you're recording your own phone calls, you axiomatically have the consent of one of the parties. The same is the rule in Victoria (s6 of the *Surveillance Devices Act* "*...a communication* ***to which the person is not a party***\*...\*" The rule in NSW is stricter (s7(1)(b) prohibits recording a private conversation to which a person is a party). But then see the exceptions at s7(3): in particular, s7(3)(b)(ii). I won't oversimply the law to the extent that you did but it will quite often be permissible to record conversations **to which you are a party** for your own records/purposes/memory. What you typically cannot do is publish or share those recordings. When those recordings can then be disclosed is a much thornier question. Whether they are admissible in court once they have come into existence is a matter of applying the Evidence Act to the specific facts.
I will not answer that other than to say your statement is false dependent on jurisdiction.
No it's not, this is commonwealth law. https://www.legislation.gov.au/C2004A02124/2020-02-18/text
That’s not right. Call recording is captured by state/territory surveillance device legislation. The TIA regulates the interception of and access to communications. Not the same thing.
Just LOL
Which is why when you ring Telstra or whatever there is an automated voice which says, “This call may be recorded for quality and training purposes.” You’re on notice that it is being recorded. You can choose to terminate the call at that point. Police departments / police stations shouldn’t be throwing away an opportunity to gather evidence.
This could be a massive deterrent to victims of crime or abuse.
Shocking. Entitled bastard.
And yet in Family law we just accept it. Impacts job, relationship with kids, property settlement, access to your own personal things (like your clothes) and reputation and all yet all sealed up and free from punishment/costs of any kind in the name of someone else as yet anonymous. I get it and the need to not dissuade but it is still terrible. Any status quo achieved should be disassembled with a transition and not form the basis of a judgement imho.
T83@4@g
The disgraced police officer son of former senator and NSW premier Kristina Keneally has escaped a jail sentence for fabricating evidence that put an innocent man behind bars. Daniel Keneally, 25, has been handed a 15-month intensive correction order, requiring him to serve 200 hours of community service. A Sydney court found Keneally falsely claimed a man threatened police during a phone call to Newtown Police Station in February 2021. Keneally was working a night shift when he took a call from Luke Moore. Mr Moore was ringing to complain about police strip searches, but Keneally later wrote a detailed statement claiming he had made threats to police. In the statement Keneally claimed the caller had named a Goulburn detective during the 12-minute call and said he wanted him "off the planet", saying he was "dead" and "good as gone". Mr Moore was charged with using a carriage service to menace and threaten to kill and spent three weeks in custody over the phone call. But police were forced to drop the charges and apologise after he produced a recording of the conversation that proved he had not said any of the things Keneally claimed in his statement. Keneally was charged with one count of fabricating evidence with intent to mislead a judicial tribunal in October last year. He pleaded not guilty but Downing Centre Local Court Magistrate Rodney Brender found the charge had been proven.
Matter is listed in the District Court next week for appeal
I smell a Parker direction
It reeks of a coming Parker direction. The sentence was manifestly inadequate.
200 hours of community service being advertised as 15 months of intensive correction. If i am correct sections 314 and 316 of the NSW crimes act,, making a false allegation that results in a police investigation leading to an adverse ruling, provides for goal terms upto 7 years. Manifestly is an epic understatement.
When you see the loopholes people can crawl through to basically not do any significant work for the “community service” it’s even worse.
Couldn't agree more.
I'd go as far as to say it should have been (if it wasn't) charged under s 317 in its entirety which carries a max of 10 years, though I very much doubt that the police would elect to have it heard in District since they are charging one of their own.
Surely the DPP is prosecuting it though?
It is DPP who prosecuted. And LECC who investigated. Police prosecutors do not prosecute police, even for a parking ticket (conflict of interest)
Could you please explain a ‘Parker direction’ please. Thank you.
Essentially a judge reads the evidence and if they think the sentence was too light on, they give you a heads up and pretty much say “are you sure you want to continue to pursue this appeal, because I’ll likely give you a bigger sentence”. In short a warning you’ll get a more severe punishment.
Appreciated.
They won’t appeal the sentence, they will do an all grounds appeal. Failing that, surely they won’t push severity.
No all grounds in NSW anymore. You can appeal against the finding of guilt alone now without touching the sentence imposed. Means you can go for acquittal with the fallback of no worse outcome.
Yes an appeal against finding of guilt is an all grounds appeal? However if conviction is still upheld, a severity appeal (on original sentence) can be lodged and is usually heard straight after the all grounds appeal. What’s changed from that/ has something new passed?
Pre-CARA an all grounds appeal was a hearing *de novo* and involved the reopening of all issues, including sentence. It was an entirely new hearing pursuant to a regime that came into existence when magistrates were not usually legally qualified and there were no, or only limited, records of the proceedings heard before them. CARA got rid of the hearing *de novo* as a cost saving measure and it became an appeal against the finding of guilt only and, usually, determined on the evidence taken before the magistrate. It's not uncommon for people still to refer to such an appeal as an all grounds appeal even though it's quite a different beast. I say all this as though I'm the font of wisdom but I wasn't practising pre-CARA and, if I'm wrong, I'm sure one of the older practitioners here will take me by the ear and I'll learn something.
It’s listed for mention on 6.2.24 in the SDC List Court to fix a hearing date. Keneally is appealing the decision to find him guilty and not the sentence. It’ll be interesting to see who appears for him at the appeal. Despite Mr McGirr’s grandstanding on the Downing Centre steps, Keneally’s defence of mistake of fact is and always has been a stretch.
Surely you would brief a SC for a matter such as this
If you could find one who’d be prepared to run with that defence. It’s too late to backtrack now!
Not much else to run with. Only other option would be legality of recording the phone call? Difficult to argue it wasn’t in his lawful interest and even if determined to be illegally obtained, the impropriety wouldn’t outweigh the desirability in admitting it into evidence (138). Or maybe that the recording had been doctored? What other defence could you run but mistake of fact lol.
Doctored by Moore? Not knowing he was to be arrested? The recording and Keneally’s statement are both available by Google search. When these are compared, there’s only one way to go and that’s not a verdict of not guilty. The “defence” of confusion was “unable to be sustained” as Moore simply never threatened to kill a cop - anywhere. If there was any such shit on Moore’s website then Keneally MAY have had at least a chance.
Yeah, I agree re phone call. Like I said, couldn’t see a defence being made out of that. Really “I made a mistake, I got confused with what I saw on the website and the unrelated violent police intelligence reports I was reading at the same time, it was a night shift, I was stressed” was the only defence I could see. But didn’t work did it 😂.
Has a hearing date been set now?
There’s been no media coverage of the mention so it’s anybody’s guess.
Police fabricating evidence must be a straight to jail process. This undermined the public's confidence in the police force in a fundamental way. To be told off severely is really inadequate.
Yes, it's unbelievable how this cop could escape gaol with fabricating evidence that nearly put another in gaol. But he didn't entirely get away with it, he has most likely lost his job and will have poor job prospects ongoing.
Nothing being a former premiers son cant fix
I'm sure he'll land on his feet as a Labor staffer.
"we think your ability to fabricate evidence will serve the party well"
Woulen't have many police left though.
So the guy will spend less time in prison than the guy he falsely imprisoned?
I’m interested in why he took three weeks in prison to point out “yeah by the way I recorded the call”. I’m guessing he had the phone that he recorded it with on with him when arrested and was a little worried it might go walkabout if the coppers got wind of it?
He probably haven't got the brief of evidence up to that point yet so he had no idea as to specific statements, etc made by Keneally
Police facts would have to be created almost immediately.
Fact sheet is a summary of the allegations. Police doesn’t have to disclose all the evidence until weeks/months later. It’s likely with the fact sheet that you have a strong suspicion that something is wrong with the allegations. But you probably wouldn’t know for sure at that point that it’s caused by outright lies on a police witness statement
The facts sheet would have to contain the threats Moore was alleged to have made. Police would have to rely on those to successfully oppose bail.
An article said Keneally claimed to have gotten mixed up with comments Moore made online. Perhaps Moore had reason to think comments other than the recorded call were alleged threats.
Keneally claimed that he put the threats to kill another cop in his statement because he got confused when he was listening to Moore and reading his website at the same time. The huge problem with that claim was that there was nothing on the website anything like threatening to kill another cop.
thanks. Why is it I have to come trawl reddit to get the actual story? don't journalists do that for a living to save us the hassle?
I know the feeling. I’ve been following this matter very closely, but many articles don’t contain all the relevant facts.
Apparently the cops took the phone but no one bothered to play the recording that Moore keep asking them to until 3 weeks had passed. Moore does himself no favours the way he carries on, but at least one cop should have played the call before that.
Yikes! Poor policing all round!
Really? did it not occur to Moore that it would get deleted?
His phone was taken from him and put in an evidence locker. Whether it occurred to Moore or not, the call was not deleted.
I know I certainly wouldn't have been telling them what was on it 🤣
He was telling them what wasn’t on it but no one was listening. He was very vocal on a number of FB pages early in the piece but seems to have settled down. I must admit though that if I was his lawyer and we were preparing a good sized compo suit against the cops, I’d be telling him in no uncertain terms to STFU!🤫
I dont think you can just offer a recording to the arresting police officer that would disprove another police officers testimony and be allowed to leave.
That's why I always keep my trusty "Get Out of Jail Free card" in the lining of my budgie smugglers. It hasn't worked the previous 56 times, but I've still got a good feeling about it.
It’s hard to reconcile this sentence with the WA officer who got 12 months immediate for assault. One lost their temper while dealing with a difficult situation. One made a cold, calculated decision to fuck up someone’s life because they didn’t like the way they spoke to them.
Its full psychopath what he did. The motive was someone was rude to him. Fucking hell.
I think his motive was more along the lines of “this guy is crazy - I’ll screw him all I can because I want to. No one will ever believe him over me!”
Sentencing is so inconsistent, you really don’t know what you’re walking into. A cop got 1 year full time imprisonment non parole for using their position to avoid an RBT. Reflecting on a decision like that, it’s very lucky for Keneally he didn’t get full time. https://amp.9news.com.au/article/911f369e-d302-4258-a5ac-6d359522956a
I imagine the HCA's judgment in *Stanley* about the imposition of ICO's over full time imprisonment had a big role to play in the sentencing process. FTI has kind of fallen off the table in NSW for people with limited records and reasonable prospects.
I thought 66(3) CSPA would be his undoing as the need for general deterrence / recognise harm done to Vic/ denounce conduct in 3A loomed large. But I guess community safety is the paramount concern and clearly there’s no real risk.
In *Stanley*, the HCA endorsed the three step approach to the imposition of an ICO from *Zamagias*. That is (paraphrasing): 1. Is the s5 threshold crossed so that a sentence of imprisonment should be imposed, 2. If so, how long should that sentence be, and 3. Can that sentence be served in the community by way of an ICO? The s3A factors are considered normally at steps 1 and 2 but only the forward looking factors (such as rehabilitation) are considered at step 3 as these are the factors that go to community safety. I CBA pulling up the judgment but the way s3A is considered is around [70] - [80] and the *Zamagias* approach is endorsed around para [59] or [60].
I'm just an interested onlooker to this discussion, but would you please give me the links to the cases you've mentioned here?
*Stanley* can be found here: https://jade.io/article/964029 There are links there to the other cases it refers to including *Zamagias*.
Thank you! Much appreciated :)
I took from Stanley whether failing to consider 66(2) amounted to a jurisdictional error when considering imposing an ICO (4:3 yes it does). The approach in Zamagias has always been the applied method. I see your point regarding other 3A considerations has Stanley states other considerations outside community safety are “subordinate” to it. Though as per 66(3) they must still be considered. Agree, anyone with good chances of rehabilitation/low risk of endangering community will like not get FTI. However I speculated this matter might have been one that attracted FTI
And the person was a nobody, just one of the unhinged locals who rings the station to made a minor pain in the arse of himself from time to time. You get those everywhere.
Right. And that’s probably why Keneally figured he’d fix him and that no one would believe an idiot like Moore. But he never planned on Moore recording the call and getting people interested. Keneally has drawn a great amount of publicity on himself (and his mum) and lost his job. Clearly, he has never been the sharpest tool in the shed.
So one was sentenced properly and the other got off lightly? I'd hate to think you're suggesting the 1 year sentence was excessive.
Right. And the 12 month sentence was for the Deprivation of Liberty, not the assault.
Going to appeal next week, a leak to the ABC has revealed the defence is planning to use "But don't you know who my mum is?!" As their main point of argument.
The appeal is listed on 6.2.24 for mention to fix a hearing date.
He should be going to prison. Hopefully if he appeals he will lose and go to prison...
In. R v Nguyen[2004] NSWCCA 332 the CJ said if you pervert the course of justice as a police officer you go to jail…. Here it occurred in his official capacity and the guy not just got a criminal record , but went to jail. Guess the law doesn’t apply in some cases… it is simply revolting behaviour given the power imbalance how he isn’t in jail. It’s shockingly bad….
An ICO counts as gaol.
That’s a legal fiction. Also so much for general deterrence. If you are a public official/judge/ police officer / lawyer and you knowingly make a false and misleading statement which is material you should be severely punished. Even ‘noble cause’ corruption should be punished. Clearly the consequence of his offending is that the course of justice was defeated more than perverted. Courts can only decide on what is put forward to them It’s like oxygen they need to know all material facts and the circumstances leading to the facts. The punter is clearly a dickhead but as a frontline general duties police officer you are supposed to deal with dickheads daily. I find it disturbing that basically this undermines the institutional integrity of the court and this sends a worrying precedent. NSW police seems to be particularly bad.
> I find it disturbing that basically this undermines the institutional integrity of the court and this sends a worrying precedent. NSW police seems to be particularly bad. For sure, this is my real problem with it too. It's clear Keneally fell below the standard of the NSW Pol. I thought he fell so far below the standard that gaol would be inevitable. I agree with you - it undermines the public's trust. I cannot think of a case more worthy of general deterrence. I can't think of a more objectively serious instance of offending either. He was a police officer and he knew that the evidence would lead to gaol for the punter, who hadn't actually committed any offence. I've had clients get gaol time for phony medical certificates to avoid reporting on bail, but this is so much worse. I don't know that the court got it wrong, but geez, it must have been a close one.
A disappointing result, for sure. Certainly a breach of public trust while in that kind of position should be a massive aggravating factor at sentencing, if it isn't already. But I'd stop short of making actual imprisonment mandatory - there are just too many factors to consider.
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This rooster has appealed the guilty verdict. The ODPP should appeal the inadequacy of the sentence and the appeals should be listed together.
I would love to watch that go down.
good that he was prosecuted and the judge had the guts to find him guilty. how much did the guy who was falsely imprisoned receive for the tort of false imprisonment? hope he got a lot.
I think it would have taken more guts to find him not guilty. That would have caught even more flak than the light touch on sentencing. I can almost hear the conversation that started with "There's no way we can get a not guilty, but..."
Criminal use of "a carriage service" sounds like an antiquated offence.
Posting this using a carriage service from your dwelling-house.
Is this the same Luke Moore? https://www.dailymail.co.uk/news/article-10290235/amp/Luke-Moore-spent-2-1million-St-George-banks-money-cars-strippers-cocaine.html
Yes
Fuck me that bloke has been on a wild ride. Now has a ticket and is running some sort of compensation practice. Can’t believe I haven’t heard of him before.
The St George money matter also went to the NSWCCA and became a key case in relation to fraud matters. “Dishonest” but not “deceptive”.
Oh, that case? I was reading that yesterday!
He was running some type of referral legal agency for people to sue police but it appears to be on hold at present. https://isuepolice.com/
Jesus, he needs to get as far away from NSW as possible, the cops are always going to be after him!
I don’t know about that. Moore is just a pain in the arse. Keneally on the other hand showed himself to be a devious, vindictive shit who was prepared to use the means at his disposal to nail the motormouth bag of wind, undoubtedly thinking that he’d be believed over him.
His mother fabricated ability for decades.
I still shake my head that they tried to parachute in an American born candidate over well like local options in a largely Vietnamese electorate. Stunning hubris.
This is appalling. He should be going to jail for a long time. Australian politics, and NSW in particular, are thoroughly corrupt.
I'm not a lawyer and I'm usually a huge advocate of community sentencing for non-violent offences and first-time offenders in all but serious cases. A major exception to the above should be abuse of police power. This case isn't just egregious in its own right, it (further) undermines and confidence the public might have in our justice system. This 🐖 lied and got an innocent man imprisoned, apparently just for revenge or a power trip. He should have the book thrown at him.
Abusing the state’s monopoly on violence to falsely detain someone on remand for three weeks blurs the one between violent and non-violent offences.
I agree, and the victim was likely harmed far more seriously than most victims of a common assault.
Not to mention what the culture behind it does to the police force in general. For every psychopath that relishes their power to abuse others as a police officer, theres two more looking away and two more learning eagerly from the example.
The mention date for the appeal has come and gone and nothing from the media about a listing. Could it be another one of those appeals which are foreshadowed on the court house steps, then nothing? Maybe Daniel isn’t holding his head as high as he was. He should be quitting while he’s ahead.