R v Moore
[2022] QSC 35
•23 March 2022
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 – GuiltyEmily Jane Tracey
Count 1 – Murder – GuiltyCATCHWORDS:
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 TraceySOLICITORS:
Office of Director of Public Prosecutions for the Crown
Fuller & White Solicitors for Paul Mathew Moore
Fisher Dore Lawyers for Emily Jane TraceyINDEX
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 …………………………………………………………...
145The 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 The Case in relation to Tracey …………………………………………
256
(a) Directions – section 7(1)(b) and (c) of the Criminal Code …... 256 (b) The prosecution’s submissions ……………………………... 268 (c) Tracey’s submissions ……………………………………….. 274 (d) Did Tracey enable, aid or encourage Moore to cause the death of the deceased knowing that Moore intended to cause either death or grievous bodily harm? ………………………………
282
The defendants are charged with the following offence:
“That on or about sixth day of February, 2018 at Wynnum West in the State of Queensland, Paul Mathew Moore and Emily Jane Tracey murdered James Andrew Switez-Glowacz.”
Both defendants pleaded not guilty.
The issues
At about 16:00 on 8 February 2018 the body of the deceased was discovered by his father, Albert Switez-Glowacz, at his son’s townhouse, unit 2/10 Florabelle Court, Wynnum West.
The deceased was on the floor near the front corner of the living room in a kneeling face-down position, with his knees under his body. His shirt was pulled halfway over his head with a large pool of blood around his head which rested against the floor. Although the deceased was discovered by his father on 8 February, he had been killed two days earlier on 6 February 2018.
An autopsy conducted on 13 February 2018 by Dr Ong, a forensic pathologist, identified one incised wound and eight stab wounds; four to the back of the head and four to the back of the torso. The wounds to the head also included the incised wound. Dr Ong attributed the death to haemorrhage from the eight stab wounds and the incised wound in combination.
Both defendants admitted pursuant to s 644(1) of the Criminal Code (Qld) that:
“On 6 February 2018 at 2/10 Florabelle Court, Wynnum West, Paul Mathew Moore stabbed the deceased, James Andrew Switez-Glowacz (Date of birth: 7 November 1981), with a knife which caused the incised wound and eight stab wounds identified at autopsy.” (exhibit 1).
Section 644(1) relevantly provides that, “An accused person may by himself, herself or the person’s counsel admit on the trial any fact alleged against the person, and such admission is sufficient proof of the fact without other evidence.” It may therefore be accepted that it was Moore who stabbed the deceased.
Section 300 of the Criminal Code provides that:
“Any person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case.”
Section 302 sets out the circumstances in which an unlawful killing will constitute murder. Those circumstances include s 302(1)(a) where the defendant intended to cause death or grievous bodily harm to the deceased.
In relation to the defendant Moore, in order for the prosecution to prove murder founded upon an intention to kill or do grievous bodily harm, it must prove all of the following elements beyond a reasonable doubt that:
1.James Andrew Switez-Glowacz is dead;
2.Moore caused James Andrew Switez-Glowacz’s death;
3.Moore did so unlawfully; and
4.Moore intended to kill or do grievous bodily harm to James Andrew Switez-Glowacz.
In light of the admission, there is no dispute that James Andrew Switez-Glowacz is dead nor that the defendant Moore caused his death. It is in issue as to whether the prosecution has proved beyond reasonable doubt that the killing of the deceased was unlawful. More specifically, whether the prosecution has excluded beyond reasonable doubt that the killing of the deceased by Moore was either self-defence against an unprovoked assault (s 271(2) of the Criminal Code) or self-defence against a provoked assault when there is death or grievous bodily harm (s 272 of the Criminal Code).
It is also in issue whether Moore intended to kill or do grievous bodily harm to the deceased and whether the prosecution has excluded beyond reasonable doubt the excuse of accident under s 23(1)(b) of the Criminal Code.
A further issue in relation to Moore is the partial defence of provocation under s 304 of the Criminal Code.
The prosecution’s case in relation to Moore is particularised as follows:
“Paul Moore is liable for the murder (s 302(1)(a)) of James Switez‑Glowacz because he caused the death of James Switez‑Glowacz by inflicting wounds to him with a knife, and with an intent to cause either death or grievous bodily harm (s 7(1)(a)).” (exhibit 2).
The prosecution case as particularised in relation to the defendant Tracey relies on the party provisions of the Criminal Code, namely s 7(1)(b) and (c) and s 8:
“Emily Tracey is liable for the murder (s 302(1)(a)) of James Switez‑Glowacz because she either:
1.enabled, aided or encouraged Paul Moore to cause the death of James Switez-Glowacz, knowing that Paul Moore intended to cause either death or grievous bodily harm (s 7(1)(b) and/or 7(1)(c)) by doing any one, or all, or any combination of the following acts:
(a)encouraging Paul Moore by words;
(b)driving and/or directing and/or travelling with Paul Moore to James Switez-Glowacz’s unit;
(c)persuading or causing James Switez-Glowacz to open the door of his unit;
(d)being deliberately present at James Switez-Glowacz’s unit; or
2.formed a common intention with Paul Moore to prosecute an unlawful purpose together to seriously assault James Switez‑Glowacz, and that in the course of carrying out that purpose James Switez-Glowacz was murdered, which was a probable consequence of carrying out that purpose (s 8).”
Mr Hoare, counsel for Tracey, in his opening statement identified the issue as to the application of these party provisions:
“The issue in this trial will not be whether or not Emily Tracey was present when James died. The issue will be the purpose of her presence and whether she was present with the requisite intent, that is whether she was present aiding Paul Moore with the actual knowledge that Paul Moore had a specific intent to cause grievous bodily harm or death, or whether the death was a probable consequence of a common intention to seriously assault James.”
General directions
The prosecution called 32 witnesses. Both defendants gave evidence. The defendants made seven admissions pursuant to s 644(1) of the Criminal Code. Those admissions are sufficient proof of those facts without other evidence. The prosecution made one admission pursuant to s 644(2), which is also sufficient proof of that fact without other evidence. I deal with relevant admissions below. Certain evidence adduced by the prosecution requires specific directions. These directions relate to two expert witnesses giving evidence by telephone, the pre-recorded evidence of a daughter of Moore (“BDH”) and the pre-recorded evidence of Albert Switez‑Glowacz, who is now deceased. Orders were also made for Ursula Lyne and Kristina Ibbotson to give their evidence by audio link.
The evidence tendered by the prosecution included two statements of Tracey dated 13 and 17 February 2018 and discs of two police interviews conducted on 21 and 22 February 2018. The prosecution also tendered a statement of Moore dated 17 February 2018 and three discs of a police interview conducted on 21 February 2018 and one disc of a police interview conducted on 22 February 2018. In the course of the second interview Moore declined to be further interviewed. This refusal requires a direction. I will also need to direct myself that although the defendants are being tried together on the charge of murder, I must give the cases against and for each of them separate consideration.
Another important direction is to ensure that in giving this separate consideration I only have regard to the evidence admissible against Moore and the evidence admissible against Tracey. To assist in this process the prosecution and the defendants have agreed on a document entitled “Witness list” (exhibit 10), which seeks to identify the evidence (including exhibits) in the case of Moore only and the evidence in the case of Tracey only. The only exception to this is the evidence of Christopher Lafferty, a police officer who had involvement with both defendants. The application of exhibit 10 makes it clear, for example, that the statements made by Moore in his statement and interviews are not admissible against Tracey and similarly, the statements of Tracey in her statements and interviews are not admissible against Moore.
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
When Tracey was 16 years of age she was in an on-and-off-again relationship with the deceased. This relationship lasted approximately 12 months. She then had an 11 year relationship with another person to whom she had three sons. When that relationship ended, she commenced living with the deceased again in 2010 and married him in November 2011. Their daughter (CWX) was born in early 2012. The relationship deteriorated. The deceased would abuse both alcohol and drugs. Tracey described him as a heavy drug user. He was also verbally and physically abusive to Tracey. The deceased also had mental health issues and had a diagnosis of paranoid schizophrenia.
A domestic violence order was obtained against the deceased. He moved out from Tracey’s house. In 2011 there were also episodes of the deceased self-harming, which required hospitalisation. This included an attempted overdose, as well as the deceased cutting his arm.
Tracey and the deceased divorced in late 2012 or early 2013. The deceased then entered into a relationship with Lisa Ikanivere. Their relationship commenced in 2014 and ended in June of 2016. Ms Ikanivere stated that during this relationship the deceased would go on drug binges which could last up to five or six days at a time. There were occasions when he would steal money from her. She also recounted that, whilst there were good times in the relationship, the deceased would sometimes become violent. On one occasion he produced a knife and held it against her neck (admissions document 7, exhibit 37). On other occasions he would use his fist to hit her. The deceased was involved in a serious assault on a person named Adam Beatty, who was intellectually impaired. The allegation was that Mr Beatty had made a threat to harm the child of Tracey and the deceased, CWX. As a result of this assault the deceased was sentenced to imprisonment.
Tracey and the deceased recommenced their relationship in July 2017. Tracey was living on Russell Island in a house with CWX and twin girls who she had had with Moore. The deceased was residing at Florabelle Court, Wynnum West. In her first statement to police (exhibit 12), Tracey stated that she and the deceased would visit each other and have sleepovers with the children. She believed that the deceased was not taking drugs at this time. The deceased started slowly moving his belongings into Tracey’s house around August or October 2017.
In the months prior to his death, members of the deceased’s family noticed an improvement in his condition. His father, Albert, noticed that he was looking the best that he had ever looked and was enjoying his time being a father to CWX. The deceased had also gained some weight. His mother, Debbie Goodlet, who also had regular contact with the deceased, considered that he was a different person prior to his death. He wanted to spend time with his daughter, CWX, as well as with Ms Goodlet and his sister. The deceased’s sister, Courtney Goodlet, last saw him on 19 January 2018. She considered that the deceased was the best that she had ever seen him and he appeared to be happy and positive. She accepted, however, that the deceased was a different person when he was using drugs and alcohol.
Dr Dale Lee was the general practitioner for the deceased. He noted that on 29 October 2017 the deceased was considering a referral to a psychiatrist. Dr Lee saw the deceased on 10 January 2018 for a review and scripts. He noted that the deceased was feeling reasonably well but did not wish to pursue the referral to a psychiatrist. The deceased was on Diazepam for anxiety, Pristiq for depression and Seroquel for schizophrenia. On 10 January 2018 as well as issuing these scripts, Dr Lee did not identify that the deceased was suffering from any psychotic symptoms or any signs of being unwell. Dr Lee accepted that the use of illicit drugs, such as cannabis and ice, could have an adverse effect on the defendant’s mental condition.
Tracey noticed that the deceased started to drink again in November 2017. He was also taking excessive amounts of codeine and Valium. A couple of weeks before school went back in January 2018, Tracey caught the deceased stealing her own Diazepam. This was the last straw for her and she broke up with the deceased again. Four or five days after the breakup she drove the deceased, together with his belongings, to his unit at Wynnum West.
In her second statement to police (exhibit 13), Tracey stated that when the deceased was drunk he was violent. Prior to Christmas 2017 the deceased had been violent towards her. This included picking her up and throwing her on the floor and choking her. Tracey stated that the deceased gave her two black eyes. She did not tell anyone because she did not wish the deceased to go back to jail. In her first recorded interview with police she described it as the one incident where the deceased was drunk and punched her three or four times. She thought the incident occurred in October 2017. She described the deceased as being a “good dad” who had never hurt any of the children.
(b) The relationship between Moore and Tracey
Moore and Tracey became friends when they were children aged around 10. They had a brief relationship for three months when Tracey was 15 years of age. Moore was subsequently in a relationship with Tracey commencing in 2011/2012 until mid‑2017. This relationship developed after Tracey divorced the deceased. At that time, Tracey had three boys from a previous relationship and CWX from her relationship with the deceased.
Initially Moore and Tracey lived together at Nerang and then moved to Russell Island. Whilst in the relationship they had twin girls who were born in early 2013. Moore was kicked out of the house by Tracey in September 2017.
Moore had been, and continued to be, devoted to Tracey. While they were in a relationship he had her name “Emily” tattooed on the side of his face (exhibit 26). Moore’s love for Tracey is also reflected in text messages he sent her (exhibit 38, items 21, 24, 34 and 37). In these text messages Moore tells Tracey that he loves her “to the moon and back”; “I love you baby girl I’m on my knees pleading to you bub I know you love me somewhere in your beautiful heart”; “God bub I bloody love you” and “I know that’s what I want to do bub face to face. I need you to see the love in my eyes”. Moore not only wished to re-establish his relationship with Tracey, he wanted to marry her.
In his statement to police (exhibit 22) Moore explained that he had become addicted to prescription drugs which had put a stress on his relationship with Tracey. After their separation, he understood that Tracey returned to her relationship with the deceased.
In his first interview with police on 21 February 2018 (exhibit 23) he told police that he “didn’t care one, one bit” that, after their breakup, Tracey was seeing the deceased. Moore had not seen his twin daughters for approximately four months after the breakup. He sent a Facebook message to the deceased, requesting that Tracey contact him. Moore had become aware through looking at the deceased’s Facebook posts that he and Tracey had reconnected.
Tracey rang Moore and they arranged for him to see his twin daughters at the Redland Bay park. This meeting occurred on 20 January 2018. I deal with this meeting in more detail below. Tracey informed Moore that she was ending her relationship with the deceased.
Tracey, in her first interview, acknowledged that she had twice left Moore for the deceased. In evidence she acknowledged that Moore wanted more from the relationship with her than she was prepared to give and that he wanted to resume a relationship with her. Tracey, however, was not interested in renewing her relationship and wished to remain single.
(c) The relationship between Moore and the deceased
Moore and the deceased had little contact. Tracey recalled Moore being present when she met with the deceased in a McDonald’s carpark in or about 2012 and subsequently at a watchhouse in about 2013. About 10 months prior to the death of the deceased Moore had dropped off a washing machine and a bed for CWX at the deceased’s unit. Tracey was not present on this occasion. On the previous two occasions, however, Tracey observed that the interactions between Moore and the deceased were civil. There was no history of violence between Moore and the deceased.
Moore gave evidence of two occasions when he spoke to the deceased about his behaviour towards Tracey. This was in about 2012. No threats of violence were made. Moore’s evidence was that the deceased told him he would try to improve his behaviour towards Tracey.
(d) The meeting between Moore and Tracey on 20 January 2018
This meeting occurred at the Redland Bay park. Tracey told police in her second interview (exhibit 21) that she had a breakdown at the park and told Moore what the deceased had done to her. In her oral evidence she stated that she told Moore about the extent of the deceased’s violence, including giving her black eyes. She also told Moore that she was concerned that the deceased may become violent towards Moore and Tracey’s twin daughters. Tracey’s evidence was that she received the black eyes from the deceased in or about October 2017. She was wearing sunglasses at the time of the meeting with Moore but does not recall having black eyes on 20 January 2018.
Moore, in his first interview, stated that Tracey told him that she and the deceased were constantly arguing. They also talked about Tracey’s father who was dying from terminal cancer. Later in the interview, Moore told police that Tracey said that the deceased had pushed her into the ground and given her a couple of black eyes so she had to wear sunglasses for a week or so. He could not recall when this incident occurred. He did not recall Tracey having black eyes when he met her at the park. In his evidence-in-chief however, Moore stated that he noticed on 20 January 2018 that Tracey had black eyes. I do not accept this evidence. First, it is inconsistent with what Moore told police in his interview. Secondly, it is inconsistent with the evidence of Tracey as to when she received the black eyes, namely in or about October 2017. Thirdly, while Tracey accepts that she wore sunglasses to the Redland Bay meeting, she does not recall having black eyes at the time. It may be accepted, however, that Tracey did tell Moore of the assaults committed by the deceased and of the potential of the deceased doing violence to their twin daughters.
(e) Moore’s Facebook message of 20 January 2018 to John Cain
In January 2018 John Cain was in a relationship with Juaunita Moore, Moore’s sister. Mr Cain had been in that relationship since 2014. He would generally stay in contact with Moore by Facebook.
On 20 January 2018 Mr Cain and Moore sent messages on Facebook (exhibit 9):
MOORE: James Emily ex
MR CAIN: Oh god I thought they were happy
MOORE: Nope
MR CAIN: What so emily sucking up yo ass now
MOORE: No
MR CAIN: Hmmmm why dont she call the pigs
MOORE: He has given Emily black eyes and a broken nose
She is scared
Please help bro
I’ll take all the blame
MR CAIN: Well shes fucken stupid then hey
MOORE: Yeah
MR CAIN: The way she treated you idgaf about emily hey
MOORE: I give a Fuck about my girls
MR CAIN: Well obviously the girls but not her
MOORE: If you can’t help I’ll do it myself
MR CAIN: Just call the cops so he goes back to jail
MOORE: Nah
MR CAIN: I gotta stay outta trouble bro cause im suing
MOORE: I want to make him pay for why he did in pain
MR CAIN: Im sure he will get bump raped
MOORE: I’m going to take him Bush tie him to a tree and belt the living Shit out of him then stab the count straight through the Neck
MR CAIN: Have you told nita
MOORE: No
It’s a man’s job
MR CAIN: Tell nita whays been going on
MOORE: Your the only one who knows
MR CAIN: Yeah but let nita know about what hes done
MOORE: Bo
Bo
No
MR CAIN: Lol
Boo
MOORE: Bo
You just scared me
MR CAIN: If i could help i would bro but i got nita and the kids to think of
MOORE: Less people who know the better
And please delete these messages
MR CAIN: Will do
Sorry i cant help us on this one bro
MOORE: I’ll find someone
In his first interview conducted on 21 February 2018 (exhibit 23) Moore told police that he did not have any issues or problems with the deceased. In his statement to police (exhibit 22) Moore made no mention of this Facebook exchange with Mr Cain.
Police showed this Facebook exchange to Moore. He sought to explain it away by saying: “Well, just because I say it, doesn’t mean I’d do it. Honestly.” He explained that he had this Facebook conversation with Mr Cain because the deceased was bashing Tracey and hurting the children. In evidence Moore stated that he was angry when he sent the Facebook messages but he did not have any intention of carrying out the threats contained within those messages. He made no further approaches to Mr Cain for assistance. Moore referred to the Facebook messages as being “shit-talk”. Mr Cain agreed in cross-examination that Moore is “often … all talk and no action”.
In cross-examination, Moore suggested that he only contacted Mr Cain “to let the frustration out”. The purpose of seeking Mr Cain’s assistance was to go and talk to the deceased. He had no intention of assaulting the deceased. The reference in the Facebook messages of Moore “taking the blame” was according to him, “Just in case something bad happened”. This possibility arose because it was unpredictable dealing with the deceased who, according to Moore, was a violent person. Moore described the words “I want to make him pay for why he did in pain” as simply being “shit-talk”. When asked what he meant when he typed these words he replied, “Exactly what it says, I guess”. He also described as “shit-talk” the statement “I’m going to take him bush. Tie him to a tree and belt the living shit out of him then stab the count straight through the neck.”
Moore accepted that 16 days later he did in fact stab the deceased but according to him, “Not on purpose”. It was simply a coincidence that Moore, in the Facebook messages, had referred to stabbing the deceased. Moore could not recall why he requested Mr Cain to delete the Facebook messages.
(f) The conduct of the deceased leading to 6 February 2018
On Friday 2 February 2018, Tracey dropped CWX to the deceased’s unit. She was accompanied by her Uncle “Buster”, who did not enter the unit. CWX stayed every second weekend with her father. The deceased had a specially set up bedroom for his daughter (exhibit 4, photos 14–16), which was described by his mother as being like a “toy store”. At around 9:39 on Sunday 4 February 2018, the deceased telephoned Tracey (exhibit 38, item 467). According to Tracey’s first statement to police (exhibit 12), the deceased requested sleeping tablets and fly spray. When she arrived at his unit at around midday she believed the deceased had been drinking. She stayed at his unit for around half an hour. The deceased talked about how he was struggling mentally throughout this time. When the deceased walked her out to the car he gave her “the tightest cuddle he has ever given me”. In her second statement to police (exhibit 13), when she saw the deceased on 4 February she also spoke to the deceased about her father, who was not doing well. Tracey’s father had been transferred from the Redland Hospital to the Blue Care Palliative Care Unit in Sibley Road, Wynnum West, which was just around the corner from the deceased’s unit at Florabelle Court (exhibit 11).
Tracey and the deceased did not argue on this occasion. The deceased admitted to Tracey that he was drinking again and had not taken his prescribed medication for a couple of days.
Later that afternoon the deceased commenced to telephone Tracey continuously. This is evident from items 511–517, 520–526 and 534–539 of exhibit 38. The first conversation, according to Tracey, involved the deceased asking to borrow her tattoo gun to cover up a tattoo he had on his leg. The deceased wanted it done then and there. It became obvious to Tracey that the deceased had been drinking. Tracey did not answer every phone call from the deceased because he was becoming abusive. This abuse included calling Tracey a selfish bitch because she would not let him have the tattoo gun. The deceased was saying things such as that CWX loved him more than Tracey and that he was a better parent. The deceased also threatened Tracey that he was going to make her life a living hell. At 20:05 the deceased sent a text message to Tracey: “All you had to do was put an effort into our relationship. Now reap the whirlwind.” (exhibit 38, item 527). This according to Tracey was a phrase that the deceased had used before. At 20:08 Tracey sent the following text to the deceased: “Don’t threaten me James … you can’t make someone be in a relationship … /and our little girl doesn’t need his fighting. And she isn’t a weapon to hurt.” (exhibit 38, item 529). Tracey gave evidence that the deceased was making threats about taking CWX away from her, stating that CWX was better off with him and that he was a better parent. He was making other threats as well. At 21:40 the deceased sent Tracey the following text: “I’m sorry Em. Just wish you’d turn your hate into love babe.” According to Tracey the deceased would often apologise after he had been abusive.
The fact that the deceased had been drinking heavily on the night of 4 February 2018 is supported by the evidence of Ursula Lyne. Ms Lyne was the neighbour of the deceased, residing at unit 3/10 Florabelle Court, Wynnum West. She had resided there for approximately six months. The deceased was already living there when she moved into her unit. She would see Tracey visit the deceased on a number of occasions. She would hear very loud verbal arguments in which Tracey’s voice was more prominent. On occasions Ms Lyne would sit with the deceased on his patio and they would have a beer together. She noticed that the deceased would not come out of his unit for days on end but on pay day he would have a beer at the back of his house and quite often she would join him. His disposition appeared to be happy.
However, when she visited him on Sunday night, 4 February 2018, the deceased answered the door with a lighter in his hand in the shape of a gun. Initially this took Ms Lyne by surprise until she recognised that it was a lighter. The deceased thought this was funny. Ms Lyne thought the deceased was quite different. He had been drinking. There was a near empty bottle of rum and two empty bottles of beer. He offered her a rum which she accepted but did not like. The deceased handed her a knife with a black and red handle with an Asian designed dragon. He handed the knife to her by the handle but she was not at all amused. The deceased then took the knife and stabbed it into a side table. Ms Lyne did not feel comfortable and soon left.
In relation to the lighter in the shape of a gun, Ms Lyne recalled that when he answered the door the deceased was pointing the gun at her with a serious look on his face and said words to the effect, “Who the fuck is this?” The deceased was not wearing a shirt at the time and had three long cuts from his collarbone to his pants. The cuts appeared to be deep but were not bleeding. The deceased’s behaviour made Ms Lyne somewhat scared. The strange behaviour of the deceased included him saying to Ms Lyne, “You’re blushing; you must like me?” Ms Lyne was aware that the deceased had been sending text messages to Tracey and that he was intending to obtain custody of CWX.
The deceased also had a phone call with his father Albert on the night of 4 February 2018. His father described the deceased as being quite agitated. He told his father that he had just got off the phone to Tracey and had a disagreement with her. The following day the deceased rang his father to apologise for the telephone call.
(g) The SMS exchanges up to and including 6 February 2018
Adam Wayne Riley is an expert in digital telecommunications investigations. In February 2018 he was a detective sergeant at Queensland Police Service and he now works for a company called Cellebrite. He conducted a review and an extraction of data from the mobile phones of Moore, Tracey and the deceased. This involved looking at telecommunications data and the interpretation of digital evidence.
Exhibit 38 relates to communications between three mobile phones: those of Moore, Tracey and the deceased. Exhibit 38 identifies: the phone from which the data is recovered; the content of some of the messages; whether the relevant message had been deleted or was intact; the date and time of the message; and, in relation to phone calls, their length.
Exhibit 38 records that from 26 January 2018 until 22:10, 6 February 2018, all SMS exchanges between Moore and Tracey were deleted on Moore’s phone. It further records that SMS exchanges between Tracey and the deceased, recovered from the mobile of the deceased, were intact.
From an examination of Tracey’s phone it was discovered that it had been reset at 15:44 on 6 February 2018 (exhibit 39, page 17, 7th entry). This was a factory reset of Tracey’s phone. Such a reset is contained under settings. The reset erases all data on the phone. Once the device is re-booted it will reset its baseline operating system. After a factory reset of a mobile phone no data can be recovered from that device. The first SMS that was able to be recovered from Tracey’s phone was on 6 February 2018 at 22:10, which was after the deceased had been killed.
Both defendants gave a number of explanations to police both in their statements and their interviews as to why SMS exchanges could not be found on their respective mobile phones.
Moore gave the following explanation in his statement (exhibit 22, paragraph 32):
“I have looked at my mobile and I have no communication before Tuesday 6 February. The reason is that I broke my previous phone on Monday 5th and placed the Simcard into another phone which I had. This is the white Huawei phone I am currently using. I only contact Emily by text messages.”
In his statement Moore refers to a number of text messages received after the deceased was killed. His statement makes no reference to him deleting text messages himself, nor to resetting Tracey’s phone.
In his interview of 21 February 2018 (exhibit 23) Moore denied clearing call histories on his phone. He denied sending text messages to Tracey prior to 6 February 2018. He stated that, “We talked over Facebook”. He denied receiving any text messages from Tracey on his Huawei phone because he was talking to her on Facebook. Moore could not explain why from 6 February 2018 he stopped communicating with Tracey by Facebook and started sending text messages by phone. This was in circumstances where he had obtained Tracey’s phone number at their meeting at the Redland Bay park on 20 January 2018. Moore told police that he was surprised to receive a text message from Tracey on 6 February 2018 because “I thought it was gunna Facebook”.
In his evidence-in-chief, Moore accepted that he did delete text messages to and from Tracey from his Huawei phone. His explanation for doing so was that he was trying to protect Tracey. In cross-examination Moore explained that he deleted the messages on his phone by pushing delete. He did not have to go through each message as he was able to delete “threads”. This permits a person to delete a series of messages sent from the one person. He could not recall whether he deleted the text messages between himself and Tracey prior to or after killing the deceased. He could not state what he was seeking to protect Tracey from in deleting the messages. Moore accepted that it did occur to him that police might get hold of the text messages and it was a good idea to delete them. This idea occurred to Moore prior to going to the deceased’s unit. His purpose in deleting the messages was that “I didn’t want Emily or myself getting into trouble”.
Under cross-examination from Mr Hoare, Moore accepted that he reset Tracey’s phone. He denied that he reset Tracey’s phone because of some plan to harm the deceased. He stated that she had been complaining to him about her phone not working.
In her second statement to police (exhibit 12) no mention is made by Tracey that Moore reset her phone at 15:44 on 6 February. In the statement, Tracey referred to a text message she received from the deceased on 4 February 2018 and a message she sent to him on the night of 6 February 2018. In her second statement (exhibit 13) Tracey once again referred to text messages exchanged between herself and the deceased on both 4 and 6 February 2018. She makes no reference in this statement however, to Moore resetting her phone. In her interview of 22 February 2018 the following exchange occurred:
SGT KITE:Yep. What discussions were had between you and Paul about messages you’ve sent each other?
TRACEY: What do you mean?
SGT KITE:We’re able to show, through these downloads, that there are deleted messages between you and Paul on certain dates, whilst other messages to other people remain. Is there a reason why you deleted messages between you and Paul?
TRACEY: ‘Cause I always delete messages from him.
SGT KITE:Well, there are messages there from Paul that aren’t deleted. There are a select number of messages that are deleted.
TRACEY: What do you mean?
SGT KITE: Well, not all the messages between you and Paul are deleted, only some.
TRACEY:Yeah, because I deleted them, and obviously I haven’t deleted the others.
SGT KITE:But there are some that are older than others and they’re not deleted.
TRACEY: They should be all deleted.
SGT KITE: Well, they’re not.
TRACEY:They should be all deleted ‘cause I delete all my messages.
Later in the interview Tracey repeated that she always deleted messages from Moore. There is no mention by Tracey in this interview to Moore resetting her phone.
In her evidence Tracey stated that on 6 February her phone was freezing and nothing would happen when she tapped a message. She was also finding it difficult at times to swipe to answer the phone. According to Tracey, Moore stated that he could fix her phone. Mr Riley could not exclude there being a software issue with Tracey’s phone which may have necessitated a manual reset.
In cross-examination Tracey did not accept the reason the phone was reset was to delete the messages which suggested some violence towards the deceased. The reset, according to Tracey, was because her phone was playing up. She accepted that the reset occurred approximately four and a-quarter hours before she and Moore drove to the deceased’s unit. She did not accept that there was any coincidence between her phone being reset by Moore and them travelling to the unit. She rejected that she was trying to delete messages or any data from her phone because police may seek access. She further rejected any suggestion that there was any plan between Moore and her to delete incriminatory messages.
The prosecution relies on the content of a number of the text messages contained in exhibit 38 as evidencing an intention of both defendants to kill or do grievous bodily harm to the deceased. It is therefore necessary to set out the relevant text message exchanges and the explanation of each defendant as to their meaning. I do not use the evidence of one defendant to definitively determine the meaning of another’s text, but I use their respective evidence about what they thought the other meant as evidence of their own intention.
In an extraction, material relevant to an SMS may or may not be recovered. Mr Riley accepted that not all SMS messages that had been deleted by Moore, for example, could be recovered. It is also possible that within text messages themselves, there could be missing words. Caution should therefore be exercised in considering the text messages both as to content and context.
In evidence-in-chief Moore accepted that he sent the text messages to Tracey and those message accurately reflect what he sent in those messages. He was angry and stressed at the time that he sent the messages. He did not, however, intend to carry out any of the threats contained in those messages and did not intend to either kill or hurt the deceased. Moore generally categorised the messages sent to Tracey as seeking to make her feel safe. He wished to appear tough. His only intention was to talk to the deceased and to tell him to “cut it out”.
On 27 January 2018 at 13:32 Moore sent Tracey a lengthy text message (exhibit 38, item 24). In this text message he referred to the deceased as a “dirty dog” who took control of Tracey’s life. He refers to Tracey talking about the deceased beating and controlling her. Moore stated that he had fast growing incurable stomach and pancreatic cancer which would be through his whole body in seven to eight months. This was untrue. The message refers to Moore “taking two people with me the mutt JAMES for disrespecting my true love putting the kids and you through hell”. Under cross-examination Moore accepted that he was angry at the deceased when he sent this message. His reference to taking two people with him was to make Tracey feel safe. He described the message as him simply talking tough and seeking to impress Tracey. He rejected that the words were framed so as to suggest that he wished to kill the deceased. He considered that the message was simply him “talking stupid”.
On 5 February 2018, between 9:30 and 9:43 Moore and Tracey exchanged the following text messages (exhibit 38, items 551–557):
MOORE: When your ready i will end it but make sure you come bring the girls to jail to visit me and it would be mice if you waited fo
TRACEY: And because of it. I miss out on seeing dad … so not fuken fair …
MOORE:Drop girls here bub i’ll watch them that’s no problem at all
TRACEY: What do you mean by last text
MOORE: I’ll take him out. I’ll take him out and if get caught I’ll so jail time
TRACEY:Of course I’ll bring the girls to come see you … no matter what sweetheart …
TRACEY: I’m ready NOW …
Under cross-examination from Mr Hoare, Moore explained that the reference to him going to jail was in the context that if he “punched” the deceased he would go to jail. He denied having any intention of harming the deceased. When Moore talked of going to jail he meant only for a few months and not being jailed for either seriously injuring or killing the deceased. In cross-examination by Mr Boyle for the prosecution Moore explained that the words he used “I will end it” meant that he would have a stern talking to the deceased in order to get him to stop. Moore was then cross‑examined as to why a stern talking to the deceased would result in Moore being sent to prison:
“And why would that bring on the fact that you’d be sent to prison?--- I don’t know. I honestly don’t know.
Well, you typed it, Mr Moore?--- I know.
So this is your big chance to explain what you meant by those words?--- If something would’ve happened out of it. Yes.
Sorry?--- If I – if I did end up assaulting him. Yes.
Assaulting?--- Yes.
Is that as high as you’re going to put it?--- Yes.”
Moore explained that the words he wrote, “I’ll take him out and if get caught I’ll – so jail time” was simply him talking tough. Moore’s evidence was that the words meant that he would go and have a long talk to the deceased and if it escalated to violence he would get into trouble for it. The interpretation Moore placed on the words “I’ll take him out” was therefore that he would go and have a chat with the deceased and if things got out of hand and he assaulted the deceased, Moore would go to jail. Moore did not know and could not say what meaning he ascribed to Tracey’s text “I’m ready. NOW”.
In her evidence-in-chief Tracey explained the words “I’m ready. NOW” as her telling Moore that she was ready now for him to talk to the deceased. She stated that there had been discussions between her and Moore about talking to the deceased over the years but there had been no decision made as at the time of the text message being exchanged that Moore would see the deceased face-to-face.
In cross-examination by Mr Boyle, Tracey explained the meaning she attached to Moore’s text “I’ll take him out and if I get caught, I’ll – so jail time”:
“So what did that mean to you at the time?--- Punch in the face. Take him out of my life. We’ve discussed it many occasions where I was dealing with James with arguments. And Paul wanted to intervene and I would say, ‘No. I’m dealing with him”. And because of that message, ‘I’m ready NOW.’ I’m just like, ‘You know what, fuck it. You can deal with him now. You can talk to him.”
Tracey had never seen Moore be violent with the deceased. She accepted that the reference to “jail time” suggested that Moore would commit some offence against the deceased. She accepted that there was no other way to interpret the text message. Tracey was questioned as to how a “punch” would make the problem go away:
“If he punches James, won’t that make – create difficulties with you and [CWX]?--- Well I don’t know. In the past he’s spoken to James and nothing’s happened and it’s actually fixed the problem.”
That was a reference to previous conversations between Moore and the deceased around 2012/2013. Tracey could not explain why she told Moore that she would bring the girls to visit him in jail. “I can’t answer that. He asked a question and I said yes.” As to her words “I’m ready NOW …” the meaning ascribed to those words by Tracey was that “I’m ready now. You can take over. Just deal with him. I’m exhausted fighting with him.” She denied that she was suggesting that she was ready for Moore to take out the deceased. The words did not mean that she wished Moore to carry out any violence against the deceased or to kill him.
Exhibit 38, items 558–574 record text messages being exchanged between Moore and Tracey from 9:42 to 9:57 on 5 February 2018. The data for the content of these text messages was not able to be recovered. Tracey, while not 100 per cent certain, recalled that she was telling Moore that she was going to see the deceased on her own. Tracey’s recollection is consistent with a text sent by Moore to her on 5 February 2018 at 9:59: “Or can I come with you baby” (exhibit 38, item 578). At 10:01 Tracey sent a text to Moore, “You can only keep me safe for so long sweetheart …” (exhibit 38, item 580). The meaning given to these words by Tracey was that if Moore was to come with her to speak to the deceased, he could only keep her safe for that visit and not for any other visit. She denied that she was suggesting that, as she was under constant threat, one way to deal with the deceased was in effect to get him out of the way.
Between 10:11 and 10:17 on 5 February 2018, Tracey and Moore exchanged the following text messages (exhibit 38, items 58–94):
MOORE:You’re not running you have a lot to deal with here bub.
TRACEY:I know … I know … but I have no fucken choice … I have to keep my kids safe and me safe … he will never stop …
TRACEY:I miss out on seeing dad today … because he would be watching … he only lives two streets away where they put dad …:
TRACEY: My life is fucked … i can’t do anything …
MOORE: Drop 3 girls here and go see dad please.
TRACEY: I CAN’T …
MOORE: I’m calling you is that ok.
Exhibit 38, item 596 then records a telephone call between Moore and Tracey which lasted 18 minutes and 50 seconds. Moore could not recall what was said in that telephone conversation but denied that he and Tracey discussed anything concerning the deceased. When further cross-examined Moore did concede that they may have discussed the deceased in the course of the telephone conversation. Tracey’s evidence was that when she referred to her life being “fucked” and that she was “just venting”. As to the telephone conversation of 18 minutes and 50 seconds, her recollection was that Moore was trying to calm her down and that he also spoke to the children. When asked whether there was any discussion about doing violence to the deceased, Tracey recalled that Moore said that it was not a good idea for her to go and see the deceased by herself. When asked whether Moore talked at all about going around and doing some violence to the deceased Tracey replied, “Not in that phone call, no.”
The exchange commences with Moore stating to Tracey, “You’re not running. You have a lot to deal with here bub”. Tracey’s evidence-in-chief was that she told Moore she was going to drop the twins at his place, say goodbye to her three boys and run away with CWX. In cross-examination from Mr Boyle Tracey accepted that at the time she was contemplating just leaving with CWX her father was terminally ill at the palliative care unit. She was unable to say where she intended to go if she ran away but she wished to “just get away from James and from his abusiveness”. She appreciated that she shared custody of CWX with the deceased. She only wished “to hide out for a bit”.
At 10:41 on 5 February 2018 the deceased had a four minute and 31 second telephone conversation with Tracey (exhibit 38, item 599). According to Tracey the deceased rang to apologise for his behaviour on the previous night. He told Tracey that he had been drinking that night. From 11:08 to 19:30 on 5 February 2018 the following text messages were exchanged between Moore and Tracey (exhibit 38, items 600–633).
MOORE: What going on baby girl
TRACEY: Same shit..
He called to say sorry.. he said he was drunk he had a full bottle of rum… and then after he said sorry he started to carry on at me….
Saying that i have all my family members around me. I don’t care about anyone else.. and i have my family at my becking call at anytime… he he has no one…. And then he hung up…
MOORE: Ok I’m still going to get him.
TRACEY: This will never stop… he will never stop….
Apparently he abused his dad last night too…
I said to him you cant say sorry and think everyone will be ok…
And i said you can’t say sorry and then start to abuse them again in the same fucken minute…
MOORE: He is a waist of space I’ll deal with him bub
TRACEY: He needs to go…. NOW.
MOORE: Ok I’ll organize something
MOORE: I need his number
TRACEY:He is pissed off because i have all my family around me….
Fuck me…
TRACEY: I told you…. If you call him it will make it worse.. pls listen.
MOORE: I won’t call till I’m there
TRACEY: He won’t answer the door then…
You’ll be lucky if he does open up the door and not run out the back
MOORE: People will be waiting at the back waiting
TRACEY: That’s a good idea .
But if anyone calls him or contacts him in anyway it will make so much WORSE for me and the kids…
I can’t live like this any longer…
TRACEY: I’m going to have a nap with the kids babe . it’s probably the only rest I’ll get.. I’m on edge because of him…
MOORE:Ok baby sleep tight and don’t fear him he is nothing he is a walking dead
MOORE: Text me when you wake bub
MOORE:
TRACEY:
TRACEY:
MOORE: No your not going alone
TRACEY:
MOORE: I love you baby girl
TRACEY: Love you too… xxooxxooo
MOORE:Can you please bring me some tobacco tomorrow and we will go pay him a visit
TRACEY: Yes i can… and who is we?:
MOORE: You and me he will open the door to you then I’ll walk around the corner and I’ll teach him a very big lesson”
TRACEY:He isn’t going to learn from a lesson.. he will continue to do what he is doing.. and he will then take my daughter….”
TRACEY: And if we both go… what about the 3 girls...
MOORE: [BDH] will watch them bub
TRACEY: Thats not a good idea…
TRACEY:
TRACEY: I don’t think it’s a good idea we both go… i have to think about the kids… they nees us… but I need to keep the safe.
I cant live like this anymore sweetheart…
Having determined Tracey’s criminal liability pursuant to s 7(1)(b) and (c) of the Criminal Code, it is unnecessary for me to consider s 8.
I find Emily Jane Tracey guilty of the murder of James Andrew Switez-Glowacz.
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