R v Moore

Case [2022] QSC 35

SUPREME COURT OF QUEENSLAND

CITATION:

R v Moore; Tracey [2022] QSC 35

PARTIES:

THE QUEEN
v
PAUL MATHEW MOORE and
EMILY JANE TRACEY
(defendants)

INDICTMENT:

Indictment No 1629 of 2019

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

23 March 2022

DELIVERED AT:

Brisbane

HEARING DATES:

14–18 and 21–25 February 2022

JUDGE:

Flanagan J

VERDICT:

Paul Mathew Moore
Count 1 – Murder – Guilty

Emily Jane Tracey
Count 1 – Murder – Guilty

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – VERDICT – where two defendants  – where the defendants are charged on indictment with murder – where admissions made that one defendant stabbed the deceased – where admissions made that one defendant was present when the other defendant stabbed the deceased – where the defence of self-defence raised – where the excuse of accident raised – where the defence of provocation raised – where one defendant guilty by party provision – where one defendant denies knowing the other defendant was going to kill or seriously injure the deceased – where defendants exchanged SMS messages related to the offence – where defendants travelled together to the deceased’s home the night of the killing – where defendants lied demonstrating consciousness of guilt – whether the defendants are guilty of murder – judge alone trial

COUNSEL:

D C Boyle for the Crown
J A Fraser with K L Fuller for Paul Mathew Moore
A M Hoare for Emily Jane Tracey

SOLICITORS:

Office of Director of Public Prosecutions for the Crown
Fuller & White Solicitors for Paul Mathew Moore
Fisher Dore Lawyers for Emily Jane Tracey

INDEX

Paragraph

The Issues ……………………………………………………………….

   3

General Directions ……………………………………………………...

  17

The Evidence …………………………………………………………...

  21
(a) The relationship between Tracey and the deceased …………. 21
(b) The relationship between Moore and Tracey ………………... 29
(c) The relationship between Moore and the deceased ………….. 36
(d) The meeting between Moore and Tracey on 20 January 2018 38
(e) Moore’s Facebook message of 20 January 2018 to Mr Cain … 40
(f) The conduct of the deceased leading to 6 February 2018 ……. 46
(g) The SMS exchanges up to and including 6 February 2018 ….. 53
(h) The deceased was security conscious ……………………….. 86
(i) The events of 6 February 2018 ………………………………. 89
(j) Moore’s evidence as to what happened that night …………… 91
(k) Tracey’s evidence as to what happened that night …………... 109
(l) Crime scene evidence ……………………………………….. 133
(m) Dr Ong’s evidence  ………………………………………….. 137
(n) Events following Moore and Tracey leaving the deceased’s unit …………………………………………………………...
145

The Case in relation to Moore ………………………………………….

165
(a) Self-defence – s 271(2) of the Criminal Code ……………….. 169
(b) Self-defence – s 272 of the Criminal Code …………………... 179
(c) The fourth element ………………………………………….. 187
(d) The excuse of accident ……………………………………… 202
(e) Moore intended to kill or do grievous bodily harm to the deceased ……………………………………………………...
218
(f) The partial defence of provocation ………………………….. 248

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R v Moore [2022] QSC 35
Case
[2022] QSC 35
Decision Date

CaseChat Overview and Summary

In the case of R v Moore, the defendants, Paul Mathew Moore and Emily Jane Tracey, were charged with the murder of a deceased individual. The prosecution presented evidence including admissions made by the defendants, statements from witnesses, and DNA evidence. The defendants raised various defences including self-defence, accident, and provocation. The legal issues before the court involved determining whether the prosecution had proved beyond reasonable doubt that the defendants were guilty of murder. The court was required to consider the evidence, including the admissions, statements, and DNA evidence, and decide whether the defendants had the necessary intention to kill or cause grievous bodily harm.

The court concluded that the prosecution had proved beyond reasonable doubt that both Moore and Tracey were guilty of murder. The court found that the DNA evidence, which indicated a high likelihood that Moore's DNA was present at the crime scene, supported the prosecution's case. Additionally, the court accepted the admissions made by Tracey that she was present when Moore stabbed the deceased. The court also considered the defendants' statements and found them to be unreliable and inconsistent. The court rejected the defences of self-defence, accident, and provocation, finding that the defendants acted with the requisite intention. The court found that the evidence, when considered as a whole, demonstrated that the defendants were guilty of murder.

The final orders of the court were that both Paul Mathew Moore and Emily Jane Tracey were guilty of murder. The court found the defendants guilty based on the evidence presented, which established their intention and involvement in the killing. The court rejected the defences and accepted the prosecution's case, leading to the conviction of both defendants for murder.

Orders

Orders of the court

Paul Mathew Moore

Count 1 – Murder – Guilty

Emily Jane Tracey

Count 1 – Murder – Guilty

Background

Background to the litigation

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Evidence

Evidence Before The Court

I direct myself as follows:(a)The burden rests on the prosecution to prove the guilt of each of the defendants. There is no burden on either defendant to establish his or her innocence. They are presumed to be innocent. The defendants may be convicted only if the prosecution establishes that they are guilty of the offence charged or some other offence of which they may be convicted on the indictment.(b)For the prosecution to discharge its burden of proving the guilt of the defendants, it is required to prove beyond reasonable doubt that they are guilty. This means that in order to convict I must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged. If I am left with a reasonable doubt about the guilt of the defendants, my duty is to acquit; that is, to find them not guilty. If I am not left with any such doubt, my duty is to convict; that is, to find the defendants guilty. Proof beyond reasonable doubt is the highest standard of proof known to the law. It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on the balance of probabilities. That is, the case must be proved to be more likely than not. In a criminal trial, the standard of satisfaction is much higher; the prosecution must prove the guilt of the defendant beyond reasonable doubt.(c)The offence of murder requires proof by the prosecution beyond reasonable doubt of an intention to kill or do grievous bodily harm. “Intent” and “intention” are familiar words. In this legal context, they carry their ordinary meaning. In ascertaining the defendants’ intention I am drawing an inference from the facts which I find established by the evidence concerning the state of mind of each of the defendants. Intention may be inferred or deduced from the circumstances in which the death of the deceased eventuated and from the conduct of the defendants before, at the time of, or after Moore did the specific acts which caused the death. Whatever Moore said about his intention may be looked at for the purpose of deciding what that intention was at the relevant time. Similarly for Tracey, what she said about her intention may be looked at for the purpose of deciding that intention at the relevant time. In respect of the offence of murder, proof of intention to produce a particular result, namely to kill or do grievous bodily harm, is an element of the offence. Accordingly, the prosecution must prove beyond reasonable doubt that each of the defendants meant to produce that result by his or her conduct. (d)I must dismiss all feelings of sympathy or prejudice, whether it be sympathy for or prejudice against either of the defendants or anyone else. No such emotion has any part to play in my decision. I must approach my duty dispassionately, deciding the facts upon the whole of the evidence.(e)I must decide the case on the evidence presented to me in Court and only that evidence. I must not take into account any outside information or other outside influence. I must not make my own enquiries or investigations about the case or anyone connected with the case.(f)I may accept evidence in whole or in part. It is for me to decide whether I accept the whole of what a witness says or only part of it or none of it. I may accept or reject such parts of the evidence as I think fit. It is for me to decide whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.(g)In drawing any inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find have been established by the evidence. I must not engage in speculation or conjecture to fill in any gaps in the evidence but it is up to me to decide whether I accept particular evidence and if I do, what weight or significance it should have.[1][1]R v Pentland [2002] QSC 231 per Martin J at [17]; Barca v The Queen (1975) 133 CLR 82 at 104.(h)No adverse inference can be drawn either because the defendants have been charged with murder and are in custody on remand. Nor can any adverse inference be drawn from the fact that the defendants were guarded by Corrective Services officers while in the dock and giving evidence from the witness box. This is a daily occurrence in a criminal court and I draw no adverse inference from such occurrence.(i)The defendants do not have to give evidence or call other people to give evidence on their behalf or otherwise produce evidence. The fact that Moore and Tracey have given evidence does not mean that either of them assumed a responsibility of proving his or her innocence. The burden of proof has not shifted to either of them. Their evidence is added to the evidence called by the prosecution. The prosecution has the burden of proving each of the elements of the offence beyond reasonable doubt and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the prosecution has proved the case before the defendants may be convicted. It is not a question of me making a choice between the evidence of the prosecution’s principal witnesses and the evidence of each defendant. The proper approach is to understand that the prosecution case depends on me accepting that the evidence of the prosecution’s principal witnesses was true and accurate beyond reasonable doubt despite the sworn evidence by each of the defendants; so I do not have to believe that the defendants are telling the truth before they are entitled to be found not guilty. In circumstances where the defendants have given evidence, there are one of three possible results which will follow:(i)I may think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case. If so my verdict would be not guilty; or(ii)I may think that, although the defence evidence was not convincing, it leaves me in a state of reasonable doubt as to what the true position was, if so my verdict will be not guilty; or(iii)I may think the defence evidence should not be accepted. However, if that is my view, I must be careful not to jump from that view to an automatic conclusion of guilt. If I find the defence evidence unconvincing, I am to set it to one side, go back to the rest of the evidence and ask myself whether, on a consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence.(j)What the defendants have said while giving evidence may be used not only for or against him or her, but also for or against each other. However, to the extent to which that evidence implicates either of the defendants in the offence, it is necessary to scrutinise it carefully. There is a danger that in implicating each other either defendant may have been concerned to shift the blame. This warning is restricted to those parts of the evidence of Moore which inculpate Tracey in the offence and those parts of the evidence of Tracey which inculpate Moore in the offence; it does not apply to the evidence as it relates to Moore’s own case or Tracey’s own case.(k)Moore’s refusal to be interviewed by police on 22 February 2018 does not constitute evidence against him. Indeed, the warning given by the police to Moore expressly advised him that he was entitled to remain silent. It would be quite wrong to reason that because Moore was silent or refused to answer questions, that he must have something to hide or be guilty of some offence. Therefore I cannot use against him the fact that he took notice of the police caution and chose to remain silent.(l)Although the defendants are being tried together, I must give the cases against and for each of them separate consideration. I must separately consider the evidence admitted in relation to Moore and I must separately consider the evidence admitted in relation to Tracey. I must return separate verdicts in respect of each defendant.(m)From the cross-examination of a number of prosecution witnesses it was evident that witnesses have given evidence at a previous trial. The fact that there may have been a previous trial is irrelevant and I must not draw any inference adverse to the defendants because of this, nor should I speculate as why any previous trial did not conclude.(n)The prosecution relies on answers said to have been given by the defendants in interviews with police as supporting its case against both defendants. In order to rely on that evidence I must be satisfied that each of the defendants gave the relevant answers that are attributed to them and that they were true. As to the electronically recorded interviews, I was given transcripts to look at while the discs were played. Those transcripts are really nothing more than someone else’s opinion of what was said by the police officers and Moore or Tracey and, although they might have been of some help, it is for me to determine what I have heard and saw. If my view of any part of the conversation differs from what the transcript shows, it is my view which must prevail. (o)The video-recording of the police interview with the defendant Moore on 21 February 2018 has been edited in some respects. That has been done to remove parts of the video-recording that are irrelevant to the issues I must decide. It is very common for video-recordings to require editing in this way before they are used in a trial. I direct myself that I am not to speculate about the parts that have been edited out. I also direct myself not to draw any inference adverse to Moore merely because irrelevant material has not been placed before me. To do so would not only be wrong, it would be utterly unfair. I must also be satisfied that the statements made by Moore or Tracey in the course of the interviews that the prosecution relies on as indicating guilt are true and accurate. I must decide whether I am satisfied that those things said by Moore or Tracey which would tend to indicate that they were guilty of the offence were true, because if I am not satisfied I cannot rely on them as going to prove their guilt. If I accept those statements made by either Moore or Tracey as true, it is up to me to decide what weight I give them and what I think they prove. I am also entitled to have regard to answers which I might view as indicating the innocence of Moore or Tracey. If I accept the truth of those answers, I am entitled to give whatever weight I think appropriate. (p)In order to bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, it is my duty to find the defendants not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.(q)The evidence of Albert Switez-Glowacz was taken on 3 December 2019. He is now deceased. An order of the Court permitted his evidence to be taken in the way it was. It is not uncommon for evidence to be given in this way. His evidence was recorded as it was given and it is that recording that was played to me. There was also an order made for the evidence of Ursula Lyne to be given by audio link. I direct myself that I must not draw any inference as to either of the defendant’s guilt from these orders. The probative value of the evidence Albert Switez‑Glowacz and Ursula Lyne gave is not increased or decreased because of the relevant order. Their evidence is not to be given any greater or lesser weight because of the orders. (r)The evidence of Moore’s daughter, BDH, who was a child at the time, consists of a statement taken by police on 17 February 2018, a recorded interview conducted on 21 February 2018, a further recorded interview conducted on 1 March 2018 and pre-recorded evidence taken on 20 April 2020. The recordings of the two interviews have been played as well as the pre-recorded evidence. In relation to each of the police interviews of BDH, the presenting of the child’s evidence in this way comprises the routine practice of the Court. This measure is adopted in every case involving children such as BDH. There is, however, a risk that BDH’s testimony is not a reliable account of what actually happened. Any statements of either defendant made to BDH reached the Court through the perceptions, interpretations and recollections of BDH, not through the recollections of either of the defendants. A witness who tells of what someone else said may have misheard or misinterpreted what was said. Or the witness might not recall things accurately because of faulty memory. Also the statements said to have been made by either of the defendants to BDH were not on oath. In making statements to BDH neither defendant was under the same imperative to speak truthfully as if in Court testifying on oath. What the defendants may have told BDH is untested and untestable: that is, what the defendants said cannot be examined to ascertain its reliability by the usual means of testing the honesty and reliability of witnesses: cross-examination. There is therefore a need for caution in deciding whether to accept as reliable the things relayed to the Court as hearsay and, if I accept any of it, in forming a view about the weight that ought to be given to this information.As to the pre-recorded evidence on 20 April 2020, at the time BDH gave evidence she was in a room separate from the courtroom. The evidence was given by use of an audio-visual link between the room in which BDH was seated and the courtroom. At the time BDH gave evidence there was a support person sitting in the room with her and no other person. Whilst BDH gave evidence all non-essential persons were excluded from the courtroom. At the time the defendants were present in the courtroom but were so positioned that BDH could not see them on the monitor or at all. BDH’s evidence was recorded as it was given and that is the recording that was played to the Court. I direct myself that all of the measures which I have outlined used for the taking and showing of BDH’s evidence are the routine practices of the Court for taking and showing evidence of children such as BDH. I must not draw any inferences to either defendant’s guilt because these measures were used. The probative value of the evidence of BDH is not increased or decreased because these measures were used. The evidence is not to be given any greater or lesser weight because these routine measures were used. (s)A number of expert witnesses were called to give evidence including Dr Ong, a forensic pathologist, two general practitioners, Sergeant Kane Gordon, an expert in blood spatter, and Adam Riley, an expert in relation to digital telecommunications. The ordinary rule is that witnesses may speak only as to facts and not express their opinions. An exception to the general rule is that persons duly qualified to express some opinion in a particular area of expertise are permitted to do so on relevant matters within the field of their expertise. The fact that such witnesses are referred to as experts does not mean that their evidence has automatically to be accepted. I am the sole judge of the facts and I am entitled to assess and accept and reject any such opinion evidence as I see fit. It is up to me to give such weight to the opinions of expert witnesses as I think they should be given, having regard in each case to the qualifications of the witness and whether I thought them impartial or partial to either side and the extent to which their opinion accords with whatever other facts I find proved. It is up to me to decide what weight or importance I give to their opinions or indeed whether I accept their opinions at all. It is important to remember that an expert’s opinion is based on what the expert witness has been told of the facts. If those facts have not been established to my satisfaction the expert’s opinion may be of little value.(t)The evidence of two expert witnesses was given by telephone. Dr David Smith was the general practitioner for the defendant Moore and Dr Dale Lee was the general practitioner for the deceased. I direct myself in accordance with s 39PB of the Evidence Act that I must not give the evidence of either Dr Smith or Dr Lee any more or less weight or draw any adverse inferences against either of the defendants only because these experts gave the evidence by telephone.(u)All counsel agree to the Court having access to the following material:(i)the transcript of the pre-recorded evidence of Albert Switez-Glowacz made 3 December 2019;(ii)the statement of BDH made 17 February 2018;(iii)the disc of video evidence and transcript of the police interview with BDH conducted on 21 February 2018;(iv)the disc of the recording of BDH’s interview with police conducted on 1 March 2018 together with the transcript;(v)the transcript of the pre-recorded evidence of BDH given on 20 April 2020;(vi)the transcript of the police interview with the defendant Tracey dated 21 February 2018;(vii)transcript of police interview with the defendant Tracey dated 22 February 2018;(viii)transcript of police interview with the defendant Moore dated 21 February 2018;(ix)transcript of interview with the defendant Moore dated 22 February 2018.I direct myself that in relation to each of the transcripts, it is someone else’s impression of what was said. The transcripts are not evidence and were made available to me as an aid only. It is what I hear on the recordings that matters, not what is in the transcripts. In relation to the evidence of BDH I must be careful not to place undue weight on her evidence because I am able to hear and read it on a number of occasions.(v)The DNA evidence led by the prosecution was the subject of an admission (exhibit 35). Tape lift samples were taken from the shirt worn by the deceased. DNA samples were obtained from the deceased and Moore and a comparison was done with the samples obtained from the shirt. From the first sample it was estimated that the mixed DNA profile obtained is approximately 320,000 times more likely to have occurred had Moore contributed DNA along with the deceased rather than if he had not. For the second sample it is estimated that the mixed DNA profile is approximately 2,500 times more likely to have occurred had Moore contributed DNA along with the deceased rather than if he had not. A DNA profile was also done in relation to swabs taken from bloodstains within the unit. It was estimated that the DNA profile obtained is greater than 100 billion times more likely to have occurred had the deceased contributed DNA rather than if he had not. The process of identification by DNA profiling is based on the testing of DNA molecules in bodily tissues and bodily fluids such as blood, saliva and semen. From measurements taken at selected locations a DNA profile for a sample of bodily tissue or fluid of unknown origin may be obtained and compared with the DNA profile obtained from a sample of bodily tissue or fluid of known origin. If the profiling tests are done correctly it may be possible to provide an estimate of the likelihood that DNA from a person such as the defendant Moore contributed to DNA found in a crime scene sample. The evidence in relation to the two tape lift samples does not prove that DNA from Moore actually contributed to the samples; rather, it is evidence as to the likelihood that this occurred. It is not absolute proof. Furthermore, the reliability of this evidence depends on the accuracy and reliability of the profiling test carried out with respect to both the sample obtained from Moore and the crime scene sample. The results of that testing will not be reliable where there has, for example, been contamination of one or both of the samples to which I have referred. Similarly with the swales taken from bloodstains. The evidence does not prove that DNA from the deceased actually contributed to the swabs of the bloodstains; rather it is evidence as to the likelihood this occurred. It is not absolute proof.(w)The prosecution relies on evidence of both Moore and Tracey to prove that each of them had a motive to murder the deceased. I direct myself that the motive by which a person is induced to do an act or form an intent is immaterial to the question of criminal responsibility. If in fact I decide that the evidence is not evidence of motive, that does not necessarily mean that the prosecution has failed to prove guilt because of lack of motive. In that event, I would have to base my verdicts on the evidence that I do accept. However, the existence of motive can be an important factual issue, particularly in a circumstantial case where the prosecution asks the Court to infer guilt (or infer that an act was done intentionally). If there is motive, then what might otherwise be inexplicable becomes explicable. I must bear in mind that the existence of motive without any more would not be sufficient to found a finding of guilt. (x)In the course of cross-examination by Mr Boyle of both Moore and Tracey, it was either expressly or implicitly suggested that they were telling lies. If I conclude that either defendant deliberately told lies, that is relevant only to his or her credibility. It is for me to decide whether those suggested lies affect their credibility. I should not follow a process of reasonings to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.The Evidence (a) The relationship between Tracey and the deceased

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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