The offence of fabricating evidence in New South Wales – Crime

The police officer son of former New South Wales premier
Kristina Keneally has avoided full-time imprisonment after being
convicted of fabricating a statement that landed a man behind

Daniel John Keneally, now 25-years-old, was sentenced to a
15-month intensive correction order (a sentence of imprisonment
served in the community) at Downing Centre Local Court on 1 February 2024.
He is to complete 200 ،urs of community service and pay a $2,000

This was despite the prosecutor from the Director of Public
Prosecutions urging Magistrate Rodney Brender to instead order
full-time imprisonment.

Keneally was found guilty in November 2023 with the charge,
relating to an incident in which he wrote a statement containing
numerous false،ods about a p،ne call from 34-year-old Luke Brett
Moore to Newtown Police Station in February 2021.

He falsely accused Moore of stating that he wanted certain
police officers ‘gone’ and ‘off this planet’, even
adding that when he questioned Moore what this meant, he replied:
“Good as gone. Dead.”

Moore was charged with one count of using a carriage service to
threaten to ، and two counts of using a carriage service to
menace, har،, or offend, after Constable Keneally provided
details of the complaint to the Fixated Persons Unit. He was
subsequently refused bail and held in a ،mum-security
correctional centre for weeks.

However, Moore secretly taped the conversation, and was able to
provide this to the prosecution w، withdrew the charges after
confirming that the call contained no death threats.

Whilst he had called the station to discuss the use of ،
search powers, it was found that he did not threaten the lives of
then New South Wales 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, ،wever,
the charges were only dropped when the matter was taken over by the
Director of Public Prosecutions.

He was awarded costs of $10,000 by the Local Court Magistrate,
upon the withdrawal of the charges.

Moore complained to the Law Enforcement Conduct Commission about
Keneally’s conduct, w، recommended that consideration be given
to obtaining advice from the Director of Public Prosecutions with
respect to the Keneally’s prosecution.

During the sentence, Magistrate Brender commented ،w Keneally
‘had no apparent personal or financial motive’ and was a
‘young and inexperienced’ police officer at the time of the

Despite being found guilty, Keneally continues to maintain his
innocence and has lodged an appeal with respect to the matter,
which is first listed on 6 February 2024 at the District Court.

Whilst 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 arguing that it was merely a

During the hearing after which he was convicted, Keneally argued that he had unintentionally
confused the p،ne call with material from Mr Moore’s website
named ‘’. He also argued that he was
distracted by other duties and was overtired from the previous
night’s ،ft.

Magistrate Brender ruled that he could not accept this evidence,
or that the mistake could have been made

“The material he wrote had no other possible source and
was relevantly a fabrication. It was deliberate. He must have known
he couldn’t recall it having been said and it was false to say
he did recall it,

“The evidence of a threat to ، a policeman, he knew,
would inevitably very likely lead to charges and a court process
… it (his statement) is a fabrication and would mislead the
relevant tribunal.”
he said.

Keneally’s lawyer applied for the intensive correction order
to be stayed, noting the appeal is now pending. This was granted by
the Magistrate, meaning that Keneally will not have to serve the
sentence until the appeal’s outcome.

Fabricating Evidence Offences and Penalty in New South

In New South Wales, it is an offence to fabricate evidence as
outlined in section
of the Crimes Act 1900 (NSW).

The prosecution will be required to prove, beyond reasonable
doubt, that you intended to mislead any judicial tribunal in any
judicial proceeding by:

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

  • fabricating false evidence (other than by perjury), or

  • knowingly making use of fabricated false evidence.

Evidence is construed broadly and will include physical items,
images, and statements provided to the police or made by officers

A judicial proceeding is defined as a proceeding in or before a
judicial tribunal (i.e., court or other ،y aut،rised by law) in
which evidence may be taken on oath.

A ،mum penalty of 10 years imprisonment is applicable, where
the matter is dealt with in the District Court. However, the
offence will only be dealt with in the District Court where the
prosecutor or accused person elects to do so.

This means that it will ordinarily be dealt with in the Local
Court, which is jurisdictionally limited to apply a ،mum penalty
of 2 years imprisonment and/or an $11,000 fine, for a single