SUPREME COURT OF QUEENSLAND

CITATION: R v Cowan [2013] QSC 337 PARTIES: R v COWAN, Brett Peter (applicant)

FILE NO: Indictment No. 323 of 2013 DIVISION: Criminal PROCEEDING: Applications pursuant to s 590AA Criminal Code ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 12 December 2013 DELIVERED AT: Brisbane HEARING 6, 7, 8, 11, 12, 19 and 20 November 2013 DATES: JUDGE: Atkinson J ORDER: 1. The defendant's application to exclude all evidence of anything said by him to police or agents of the police, including any alleged admissions either by word or conduct, is refused. 2. The defendant’s application to exclude the evidence proposed to be led in relation to his prior sexual misconduct with A and B is allowed.

CATCHWORDS: CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – VOLUNTARY STATEMENTS – VOLUNTARINESS – GENERALLY – where the applicant was charged with murder, indecent treatment of a child under 16 and interference with a corpse – where the applicant applied pursuant to s 590AA of the Criminal Code to have the evidence of admissions made by words or deeds to police and all evidence obtained as a result excluded on the grounds of lack of voluntariness or in the exercise of judicial discretion because of unfairness – where the admissions were obtained by an undercover police operation – where for the purpose of the application the applicant conceded the reliability of the confessions – whether the admissions were made voluntarily – whether there are discretionary reasons to exclude the admissions

CRIMINAL LAW – EVIDENCE – PROPENSITY, 2

TENDENCY AND CO-INCIDENCE – ADMISSIBILITY AND RELEVANCY – PROPENSITY EVIDENCE OF PRIOR CONVICTIONS – where the applicant had two prior convictions for sexual offences against young boys – whether the opportunistic sexual offending by the applicant against two much younger boys bore no reasonable explanation other than inculpation of him in the abduction and murder – whether the prejudicial impact of the similar fact evidence outweighs its probative value – whether the evidence of the applicant‘s prior sexual misconduct should be excluded

Criminal Code 1899 (Qld), s 590AA Criminal Law Amendment Act 1894 (Qld), s 10 Coroners Act 2003 (Qld), s 39 Police Powers and Responsibilities Act 2000 (Qld), s 5(e), s 10, s 396,

Attorney-General for NSW v Martin (1909) 9 CLR 713, cited Basto v R (1954) 91 CLR 628; [1954] HCA 78, cited Bunning v Cross (1978) 141 CLR 55, cited Collins v The Queen (1980) 31 ALR 257; [1980] FCA 72, followed Cleland v The Queen (1982) 151 CLR 1; [1982] HCA 67, cited Cornelius v The King (1936) 55 CLR 235; [1936] HCA 25, cited Em v The Queen (2007) 232 CLR 67; [2007] HCA 46, cited Foster v The Queen (1993) 66 A Crim R 112; [1993] HCA 80; cited Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50, cited HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, followed Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50 cited Ibrahim v The King [1914] AC 599, cited Kempley v The King (1994) 18 ALJR 118, cited MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46, cited Makin v Attorney-General (NSW) [1894] AC 57, cited McDermott v The King (1948) 76 CLR 501; [1948] HCA 23, followed Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, followed Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, followed R v Bailey [1958] SASR 301, cited R v Banner [1970] VR 240, cited R v BBG [2007] QCA 275, cited R v Bellman [1933] QWN 1, cited R v Boardman [1975] AC 421, cited 3

R v Brown [2011] QCA 16, cited R v CAH (2008) 186 A Crim R 288; [2008] QCA 333, cited R v Chadwick (1934) 24 Cr App R 138, cited R v Czerwinski [1954] VLR 483, cited R v Hagan [1966] Qd R 219; [1996] QCA 447, cited R v Harding [1934] QWN 23, cited R v Ireland (1970) 126 CLR 321; [1970] HCA, cited R v Lee (1950) 82 CLR 133; [1950] HCA, cited R v McKay [1965] Qd R 240, cited R v MAP [2006] QCA 220, cited R v O’Keefe [2000] 1 Qd R 564; [1999] QCA 50, cited R v O’Neill [2010] QCA 111, cited R v Swaffield (1998) 192 CLR 159; [1998] HCA 1, followed R v Thompson [1893] 2 QB 12, cited R v Vaughan; ex parte A-G (Qld) [2006] QCA 216, cited R v Voisin [1918] 1 KB 531, cited R v W [1988] 2 Qd R 308, cited Reg v B (CR) [1990] 1 SCR 717, cited Sutton v R (1984) 152 CLR 528; [1984] HCA 5, cited Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39, followed Van Der Meer v The Queen (1988) 62 ALJR 656; [1988] HCA 56 cited Wendo v The Queen (1963) 109 CLR 559; [1963] HCA 19, cited

COUNSEL: M R Byrne QC with G P Cash for the Prosecution A J Edwards for the applicant

SOLICITORS: The Director of Public Prosecutions for the Prosecution Bosscher Lawyers for the applicant

[1] The defendant has been committed for trial in this court on charges of murder, indecent treatment of a child under 16 and interfering with a corpse. The counts on the indictment relate to allegations that the defendant unlawfully and indecently dealt with a child, Daniel Morcombe, killed him and then improperly dealt with his body. All of those events are alleged to have occurred on 7 December 2003.

[2] The defendant has indicated that at the trial he will admit the following facts. As at 7 December 2003, he lived at 73a Alf's Pinch Road, Beerwah. Daniel Morcombe was born on 19 December 1989 and so was 13 years old on 7 December 2003. On that day he left his home at 116 Woombye-Palmwoods Road, Palmwoods some time before 2.00pm. A demountable building was situated at Lot 2, 510 Kings Road, Glasshouse Mountains. Skeletal remains, whose DNA was consistent with Daniel Morcombe's, and shoes were found during a search of the Kings Road site. The location of those skeletal remains and shoes are identified on a survey plan of Lot 1, 510 Kings Road, Glasshouse Mountains. Various remnants of clothing were found in a creek bed at Coochin Creek nearby to Kings Road, Glasshouse Mountains.

[3] In addition to those admitted facts, the prosecution will allege that after lunch on Sunday 7 December 2003 Daniel told his brothers he was going to Sunshine Plaza 4

to get a haircut and look for Christmas presents. He left home sometime before 2.00pm and walked the 1.3 kilometres to wait for a bus on Nambour Connection Road. When he left home he was wearing a pair of navy blue shorts, a red Billabong brand t-shirt and a pair of grey Globe brand sneakers.

[4] It was not uncommon for Daniel to catch the bus to the Plaza. He and his twin brother Bradley would catch the bus there every four or five weeks. They would walk down to the Kiel Mountain Road underpass and hail the bus. The Sunshine Church is near the overpass on the northern side of Nambour Connection Road. There is a caravan sales yard on the southern side of Nambour Connection Road. Daniel and his brother would wait for the bus on the northern side underneath the overpass where there was an "unofficial" bus stop.

[5] The first bus scheduled to pass the bus stop broke down at 1.45pm about 750 metres before the overpass. A replacement bus arrived shortly after 2.10pm. As the service was now running late it was decided the replacement bus would continue as an express service to Sunshine Plaza. A smaller shuttle bus followed soon after the replacement bus to pick up passengers along the route.

[6] As the replacement bus went through the underpass the driver and witnesses noticed Daniel hailing the bus. The driver signalled to suggest that there was a bus following which would pick up Daniel. Various witnesses also saw a male person standing some distance behind Daniel. The replacement bus went through the underpass at about 2.15pm. The shuttle bus following was about three minutes behind and went through the underpass at about 2.18pm. By that time Daniel had disappeared.

[7] Mr and Mrs Morcombe arrived home about 4.30pm. When Daniel did not arrive home they first made enquiries with the bus company and later that day reported Daniel was missing. An investigation commenced.

[8] Witnesses saw a child matching Daniel's clothing and appearance at the underpass at about the time the first bus went past. Some witnesses saw a male in the area at that time. Some witnesses saw a blue sedan in the area at various times on Sunday 7 December 2003. Some witnesses describe a young male near the blue car with either one or two adult males. At least one witness, Jessiah Cocks, who gave a statement to police on 19 December 2003, described a white 4WD near that point.

[9] The prosecution will allege that the defendant offered to drive Daniel to Maroochydore but that instead took him to a demountable building at Lot 2, 510 Kings Road, Glasshouse Mountains where he indecently dealt with Daniel, then killed him, disposing of his body nearby and disposing of his clothing in Coochin Creek.

Application

[10] The defendant filed an application for pre-trial rulings in this matter. An application that the prosecution be permanently stayed was abandoned however the applicant maintained his application in respect of certain evidence sought to be led by the prosecution in this case. The defendant applied for an order that all evidence of anything said by him to police or agents of the police including any alleged admissions either by word or conduct be excluded from evidence and that all evidence obtained as a result of anything said by the applicant to police or agents of 5

the police be excluded from evidence. His application also included an application for an order that the evidence proposed to be led in relation to the applicant's prior sexual misconduct with A and B be excluded from evidence.

[11] These are my reasons for refusing the defendant's application to exclude the evidence of admissions made by him by words or deeds to police and all evidence obtained as a result; and my reasons for allowing the defendant's application to exclude evidence of his prior sexual misconduct with A and B.

Evidence on the pre-trial application

[12] The parties filed by consent an application book containing evidence which has been made exhibit 1 in the pre-trial application. Further documents were tendered during the hearing. Witnesses were called by the prosecution, some at the request of the applicant, or because the court required them to be called at the applicant's request. The court was asked to accept some statements of facts referred to in the submissions as common ground for the purposes of determining the application.

[13] In addition, the applicant himself gave evidence as did his father. The applicant's evidence given on 31 March and 1 April 2011 at the inquest conducted into the disappearance of Daniel Morcombe was included in exhibit 1.

[14] Amongst the documents in exhibit 1 were statements by four police officers who were involved in the original investigation of the defendant with regard to the disappearance of Daniel Morcombe. Those four police officers were Kenneth John King, Dennis Martyn, Mark Ian Wright and Bruce Hamish MacLean. There were two statements by Kenneth King one dated 16 September 2011 and an addendum statement dated 1 October 2011. Extracts from Mr King's job log from 21 and 22 December 2003 were tendered at the hearing as exhibit 8. An addendum statement by Mr Wright was tendered as exhibit 6. Mr King, Mr Martin and Mr Wright were called to give evidence at the pre-trial hearing.

[15] Mr Wright was also involved in the investigation in 2005 with another police officer, Tracey Patricia Barnes. A statement from Ms Barnes was also in exhibit 1. The investigation of the defendant with regard to this matter continued in 2006 when he was interviewed by Mr Wright and two other police officers, Howard John Hickey and Aaron Walker. Mr Hickey and Mr Walker gave evidence at the pre-trial hearing. A statement from Mr Hickey was part of exhibit 1 and an addendum statement from Mr Hickey was tendered as exhibit 5. Included in exhibit 1 were transcripts of interviews between the police officers Wright and Barnes and the defendant on 6 July 2005 and between police officers Wright, Hickey and Walker and the defendant and his father on 14 September 2006.

[16] Exhibit 1 also included a number of statements from undercover police officers who were given permission to be referred to by their covert names or numbers. There was a statement from a Joseph Michael Emery, the assumed name of a Queensland plain clothes senior constable stationed at the Covert and Controllers Operations Unit in the State Crime Operations Command. There were a number of Western Australian police working as covert operatives who gave evidence by their covert operative number. Exhibit 1 included a statement by the Western Australian covert operative #452, known to the defendant as Paul Fitzsimmons or Fitzy, and a transcript of the evidence which he gave at the committal hearing with regard to the defendant. Exhibit 1 also included a statement by covert operative #483, known to 6

the defendant as Arnold, as well as a transcript of his evidence before the committal. Exhibit 1 also included a statement by covert operative #508, who was the covert controller from the Western Australian police, and the transcript of his evidence at the committal hearing. Each of those three covert operatives were called in the pre- trial hearing to give evidence in person. Evidence was also given at the pre-trial hearing by covert operative #578, who had played the part of a corrupt police officer "Craig".

[17] Also contained within exhibit 1 were transcripts of covert tape recordings taken by covert operatives of their dealings with the defendant. These transcripts included a transcript of conversations between the defendant and covert operative #452 and other covert operatives (Danny, Jeff #490 and Dougie) on 14 June 2011; conversation between the defendant and #452 and other covert operatives (Carl and Eddie) on 24 June 2011; conversations between the covert operatives #452 and #490 and the defendant on 2 August 2011; conversations between the covert operatives #452, #490 and #478 and the defendant on 4 August 2011; conversations between covert operative #452 and the defendant, and covert operative #483 "Arnold" and the defendant on 9 August 2011. During the hearing an addendum containing corrections to that transcript was tendered as exhibit 4. A DVD of this conversation was tendered as exhibit 10. A copy of a map drawn by the defendant during that conversation of where he said he drove Daniel Morcombe before he killed him was tendered as exhibit 9.

[18] Also contained in exhibit 1 were transcripts of conversations between covert operatives #452 and #392 and the defendant on 10 August 2011; conversations between covert operative #452 and the defendant on 11 August 2011; conversations between the covert operatives #452 and #392 and the defendant on 12 August 2011; conversations between the covert operatives #452 and #392 and the defendant on 13 August 2011; and a transcript of the arrest of the defendant by Queensland police officer Steven Blanchfield on 13 August 2011.

[19] Mr Blanchfield also gave evidence at the pre-trial hearing as well as providing a statement which was part of exhibit 1 along with a copy of the transcript of the evidence given by Mr Blanchfield at the committal hearing.

[20] Evidence was also called at the pre-trial hearing from Assistant Commissioner Michael James Condon whose statement was in exhibit 1. A transcript of the evidence he gave at the committal is also part of exhibit 1. John Robert Carey, the controller of the covert operation in Queensland, gave evidence at the pre-trial hearing. His statement was also part of exhibit 1. Evidence was also given at the pre-trial hearing by a police officer Grant Russell Linwood. A copy of his statement and the transcript of his evidence before the committal hearing was also part of exhibit 1. A series of emails between Mr Linwood and others about the recall of the defendant to give further evidence at the inquest were made exhibit 7.

[21] Also included in part of exhibit 1 were a series of emails regarding the issuing of an order to the defendant to attend the reconvened inquest. The coroner signed that order to attend the inquest on 29 July 2011. A copy of the order which is part of exhibit 1 showed that he was required to attend on 26 October 2011. Evidence was given at the pre-trial hearing by Peter Johns, counsel assisting the coroner and Daniel Grice, who is the team leader of the State coroner investigation team within the coroner's office. 7

[22] In addition, included in exhibit 1 was material with regard to the circumstances of the defendant's prior criminal offending.

Grounds for exclusion of admissions

[23] The applicant in this case seeks to have the statements and actions which represent admissions or confessions by him in August 2011 excluded on two bases: that the prosecution cannot prove they were made voluntarily or, if they were made voluntarily, that the applicant can show that it would be unfair to admit them in the case against him.

[24] The applicant conceded for the purposes of the application that it could not be argued that the admissions made by Mr Cowan were unreliable. It was not sought to exclude the admissions on public policy grounds or because of a lack of basal voluntariness. These concessions were in my view correctly made. A forensic decision was made not to pursue arguments of little merit with the attendant prospects of success.

Statements not admissible unless voluntary

[25] The fundamental rule at common law is that admissions or confessional statements are not admissible unless they were made voluntarily.1 In addition to the common law, the concept of voluntariness has long had statutory force in Queensland with s 10 of the Criminal Law Amendment Act 1894 (Qld) providing that: ―No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.‖

Section 10 does not exclusively govern the admissibility of confessions in Queensland but supplements the common law.2

[26] Where voluntariness is contested on a pre-trial hearing, the onus rests on the prosecution to prove, on the balance of probabilities,3 that the mandatory requirement of voluntariness has been satisfied.4 The question of voluntariness and therefore admissibility is a matter to be determined exclusively by the judge in the absence of a jury.5 Where the judge is not satisfied that the statement was made voluntarily, the judge is required by law to exclude it from evidence.6

1 McDermott v The King (1948) 76 CLR 501 at 511; MacPherson v The Queen (1981) 147 CLR 512 at 519. 2 R v McKay [1965] Qd R 240 at 241. 3 Wendo v The Queen (1963) 109 CLR 559; MacPherson v The Queen (1981) 147 CLR 512 at 519; Foster v The Queen (1993) 66 A Crim R 112 at 123-124 per Brennan J. 4 R v Thompson [1893] 2 QB 12; Attorney-General for NSW v Martin (1909) 9 CLR 713; R v Bellman [1933] QWN 1; R v Chadwick (1934) 24 Cr App R 138; R v Harding [1934] QWN 23; R v Hagan [1966] Qd R 219 at 227. 5 R v Czerwinski [1954] VLR 483 at 484 which was approved by the High Court in Basto v R (1954) 91 CLR 628 at 641. 6 Collins v The Queen (1980) 31 ALR 257 at 310 per Brennan J. 8

[27] For a confession to be voluntary it is well-established that it must be ―made in the exercise of a free choice to speak or be silent‖.7 Whether the defendant did or did not ‗volunteer‘ the statement is irrelevant.8

9 [28] In the landmark High Court decision of McDermott v The Queen, Dixon J, elaborated on when a defendant's statement may be involuntary: ―If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.‖

[29] Drawing upon Dixon J‘s comments in McDermott, Bowen CJ in Collins v The Queen10 further discussed the voluntariness requirement: ―Before a confession may be admitted in evidence in a criminal trial, it must be proved by the Crown on the balance of probabilities, that it was voluntary (Wendo v R (1963) 109 CLR 559). This means substantially that it has been made in the exercise of the person's free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary, if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority (McDermott v R (1948) 76 CLR 501 at 511; R v Lee (1950) 82 CLR 133).‖

11 [30] A recent statement of this rule by the High Court is found in Tofilau v The Queen where Gleeson CJ held: "A confessional statement will be excluded from evidence as involuntary if it has been obtained from an accused either by fear of prejudice or hope of advantage, exercised or held out by a person in authority."12

[31] The factual circumstances of this case bore striking similarities to the factual scenario in Tofilau v The Queen. In that case each of the appeals raised for consideration the admissibility of what was referred to as "scenario evidence". Scenario evidence is therein referred to as confessional evidence obtained where undercover police officers pose as members of a criminal gang. Those undercover police officers befriend a person whom they think has committed a serious crime although they do not yet believe they are able to prove that the suspected person has

7 R v Lee (1950) 82 CLR 133 at 149; Collins v The Queen (1980) 31 ALR 257 at 307-308 per Brennan J; Cleland v The Queen (1982) 151 CLR 1 at 5; R v W [1988] 2 Qd R 308 at 314. 8 Cornelius v The King (1936) 55 CLR 235 per Dixon, Evatt and McTiernan JJ at 252; R v Lee (1950) 82 CLR 133 at 149; Collins v The Queen (1980) 31 ALR 257 at 307 per Brennan J. 9 (1948) 76 CLR 501 at 511. 10 (1980) 31 ALR 257 at 258-259. 11 (2007) 231 CLR 396; [2007] HCA 39 at [2]. 12 Quoted from Ibrahim v The King [1914] AC 599 at 609. 9

committed that serious crime. The undercover police officers encourage the person to take part in scenarios involving what the person wrongly thinks is criminal conduct. This leads to a situation where the person is invited to inform the head of the gang of anything that might attract the adverse attention of the police. In Tofilau v The Queen this was said to offer two advantages to the person: "One is the opportunity of material gain by joining the gang. The other is the certainty that the head of the gang can influence supposedly corrupt police officers to procure immunity from prosecution for the serious crime."13

14 [32] It is clearly shown by Tofilau v The Queen that an undercover police officer is not a person in authority as the applicant lacked reasonable grounds for thinking that they had lawful authority to investigate the offence of which it was thought he was guilty. The only reasonable belief that the applicant had about them was that they were gangsters not authorised police officers therefore nothing they said or did could act as an inducement by a person in authority rendering the confessional material inadmissible.

Discretionary exclusion for unfairness

[33] Even if the judge is satisfied that the statements were made voluntarily and are thus admissible, the judge has a discretion to exclude admissions from evidence on the basis that it would be unfair to the defendant if they were admitted.15 This is reflected in the Police Powers and Responsibilities Act 2000 (PPRA) in particular s 5(e) which provides that one of the purposes of the PPRA is "to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under [the PPRA]." Section 10 of the PPRA provides that: "This Act does not affect the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion."

[34] However it should also be noted that s 396 of the PPRA provides that Chapter 15 of the PPRA, which relates to the specific powers and responsibilities of police found in the PPRA relating to investigations and questioning of suspects for indictable offences, does not apply to covert operations.16

17 [35] In Cleland v The Queen, Gibbs CJ summed up the discretion in the following way: ―A confession will not be admitted unless it was made voluntarily, that is in the exercise of a free choice to speak or be silent. But even if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused.‖

[36] It follows that whether a confession is voluntary is not relevant to the question of whether there are grounds for rejecting the confession as a matter of discretion.18

13 At [219]. 14 At [45], [322], [323]. 15 Ibrahim v R [1914] AC 599 at 609; R v Voisin [1918] 1 KB 531 at 539; McDermott v The King (1948) 76 CLR 501. 16 See also the Police Powers and Responsibilities Regulation 2000 s 2. 17 (1982) 151 CLR 1 at 5. 18 Collins v The Queen (1980) 31 ALR 257 at 312 per Brennan J. 10

Put simply, a statement must always be voluntary to be admissible in evidence and even then, a discretion to exclude it resides in the judge. It is the defendant who bears the onus of showing that there is reason for the judge to exercise the discretion to exclude it from evidence.19

[37] A judge‘s discretionary power to exclude a voluntary statement on the basis that it was wrongly, improperly or unfairly obtained is well-established at common law. In McDermott v The King20 Dixon J discussed the discretionary power in the following terms: ―Here as well as in England the law may now be taken to be … that a judge at the trial should exclude confessional statements if in all the circumstances he thinks that they have been improperly procured by officers of police, even although he does not consider that the strict rules of law, common law and statutory, require the rejection of the evidence.‖

[38] Accordingly, where a statement has been obtained by police using ―improper‖ or ―unfair‖ methods,21 the judge may exercise a discretion to exclude it. It is important to note, however, that although the conduct of the police is undoubtedly relevant in considering the exercise of the discretion, the sole question is whether in all the circumstances it would be unfair to use the statement against the defendant.22 Indeed, as Brennan J, as he then was, said in Collins v The Queen,23 ―the concept which governs the exercise of the discretion is unfairness, not contravention of the rules.‖ In Van Der Meer v The Queen24 the High Court also held that notwithstanding irregularities in the methods used by the police, the proper test of including a confessional statement is whether it would be unfair to the accused person to use his statements against him, not whether the police have acted unfairly.

[39] How and when the discretion to exclude because of unfairness arises cannot be exhaustively stated. As observed by the High Court in R v Swaffield,25 ―the term ‗unfairness‘ necessarily lacks precision; it involves an evaluation of circumstances.‖ The purpose of the discretion to exclude evidence on the ground of unfairness is "to protect the rights and privileges of the accused person."26 Whether or not the confession made is reliable or unreliable is important but not necessarily determinative. As was held in R v Swaffield:27 "Unreliability is an important aspect of the unfairness discretion but it is not exclusive. As mentioned earlier, the purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights. There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence."

19 R v Lee (1950) 82 CLR 133; R v Bailey [1958] SASR 301; R v Banner [1970] VR 240. 20 (1948) 76 CLR 501 at 515. 21 Collins v The Queen (1980) 31 ALR 257 at 260 per Bowen CJ. 22 R v Lee (1950) 82 CLR 133; Bunning v Cross (1978) 141 CLR 55 at 74 per Stephen and Aickin JJ; Collins v The Queen (1980) 31 ALR 257 at 260 per Bowen CJ. 23 (1980) 31 ALR 257 at 314. 24 (1988) 62 ALJR 656. 25 (1998) 192 CLR 159 at 189. 26 R v Swaffield (1998) 192 CLR 159 at 189. 27 (1998) 192 CLR 159 at 197 per Toohey, Gaudron and Gummow JJ. 11

[40] However as Gummow and Hayne JJ pointed out in the subsequent High Court decision of Em v The Queen:28 "Because the chief focus of the common law discretion falls upon the fairness of using the accused person's out-of-court statement, not upon any purpose of disciplining police or controlling investigative methods, the reliability of what was said out of court is important to the exercise of that discretion."

[41] Commonly, the discretion will arise ―when the evidence in question is of relatively slight probative value but is highly prejudicial to the accused.‖29 It may therefore be necessary to weigh the probative value of the statement against the prejudicial impact upon the defendant.30

[42] In considering whether to exercise the discretion, there is also a need to balance the public interest of ensuring police have the freedom to conduct investigations and that people who commit criminal offences are convicted against the public interest of ensuring that defendants are treated fairly.31 In R v Ireland,32 Barwick CJ made the following observations: ―Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.‖33

[43] The exercise of the discretion thus requires careful consideration of all the circumstances surrounding the making of the statement or confession.

[44] The applicant submitted that in R v Swaffield, several considerations were identified as apposite to the exercise of the unfairness discretion:

 whether on a review of all of the circumstances the confessional statement was obtained in an improper or illegal manner, or obtained as a result of unlawful, unfair or improper methods employed by police;34

 whether the methods used to obtain the confession were calculated to cause an untrue admission to be made, or whether the confession is unreliable or untrustworthy;35

 whether the confession was made in the exercise of a free choice to speak or be silent;36

28 (2007) 232 CLR 67 at [111]. 29 Bunning v Cross (1978) 141 CLR 55. 30 Collins v The Queen (1980) 31 ALR 257 at 277 per Muirhead J. 31 Van der Meer v The Queen (1988) 62 ALJR 656 at 661. 32 (1970) 126 CLR 321 at 335. 33 Cited in Collins v The Queen (1980) 31 ALR 257 at 316 per Brennan J. 34 R v Swaffield at [14]-[15], [53], [91]. 35 R v Swaffield at [15], [17], [54], [78]. 36 R v Swaffield at [73]. 12

 whether, had the police observed the principles governing the interrogation of suspects it might well have transpired that the statements would not have been made or not have been made in the form in which they were made.37

[45] However, as will be seen, none of those factors can be made out in this case. The methods employed by the police were not improper. The confessions made were not unreliable. The confessions were recorded so that the terms in which they were made cannot be disputed. They revealed matters that could only have been known to a person who was involved in the disappearance and death of Daniel Morcombe, most notably the location of his remains and clothing in a remote area. The objective evidence supports the reliability of the confessions. Their reliability (at least for the purpose of the application) was conceded by the applicant. They were made in exercise of a free choice to speak or be silent and there was no relevant breach of the principles governing a covert investigation.

The investigation

[46] On 7 December 2003 the homicide squad at the State Crime Operations Command of the Queensland Police Service became aware of and ultimately involved in an investigation concerning the disappearance of Daniel Morcombe from the Sunshine Coast. The officer in charge of the homicide squad on 7 December 2003 was Assistant Commissioner Michael James Condon who was then a Detective Inspector. Assistant Commissioner Condon remained in a management role over the homicide squad until June 2013. During that time he held a supervisory role into the investigation concerning the disappearance of Daniel Morcombe. One of the persons of interest identified during the investigation was Brett Peter Cowan.

[47] Police spoke to known or suspected child sex offenders who lived in the area in December 2003. At the time the defendant, Brett Cowan, lived on Alf's Pinch Road at Beerwah. He was living on the Sunshine Coast after his release from gaol in the Northern Territory and had contact with his uncle and aunt who were pastors at the church adjacent to where Daniel disappeared. He owned a white 4WD vehicle, a 1990 Nissan Pajero registration number 552 GLT.

[48] On 21 December 2003 police spoke to Mr Cowan. Those police officers were Kenneth King, who was then a Senior Constable of police attached to Task Force Argos and who is no longer a police officer, and Dennis Martyn, who was then a Detective Senior Constable in the covert unit in Brisbane and is now a Detective Sergeant at the homicide unit. They took notes in their police note books. Mr King tape recorded the conversation on his mobile cassette recorder and compiled a job log in relation to these events. The cassette tape can no longer be found.

[49] Mr Cowan told police he left his home on 7 December 2003 at about 1.30pm to drive to a friend's house at Nambour to collect a mulcher. It took about half an hour to drive from Cowan's house to his friend's. He estimated he had returned to his home about 2.30 to 2.45pm and described a route that took him through the underpass where Daniel disappeared. He said he did not observe any people or vehicles at the underpass when he drove through. He voluntarily gave police a DNA sample and photograph.

37 R v Swaffield at [19]-[20], [54], [71]-[73]. 13

[50] On 22 December 2003, Martyn and King spoke to Mr Cowan's then wife who estimated that he did not arrive home until at least 3.00pm. They also drove the route that the applicant said he had taken. They spoke to the friend who had loaned him the mulcher. He estimated Cowan had been at his house for five minutes only. Martyn and King formed the view that there was 45 minutes of unaccounted for time in Mr Cowan's alibi. King looked at one of the comfit drawings that had been prepared from descriptions given by various witnesses on the bus and formed the opinion that the drawing looked like Cowan.

[51] On 23 December 2003 police spoke to Mr Cowan again. The police officers involved were Detective Sergeant Bruce McLean and Mark Wright. Mark Wright is now a Sergeant stationed at the Coolum Police Station. In December 2003, he was a Detective Senior Constable at the Beerwah CIB. During this conversation Mr Cowan said he arrived back home, after collecting the mulcher, at 2.30pm. The next day he consented to an examination of his car, the Mitsubishi Pajero. Scientific examination did not reveal any evidence linking Mr Cowan with Daniel's disappearance.

[52] The defendant did not dispute the admissibility of these conversations between himself and the police.

[53] Mr Cowan was not further interviewed until 6 July 2005. He was living in New South Wales at the time. The interview was conducted at Nerang police station. The prosecution conceded that by the commencement of this interview he could reasonably be regarded as a "suspect" as that word is used in Chapter 15 of the PPRA. The defendant did not dispute the admissibility of this interview. He was interviewed by police officers Detective Sergeant Tracey Barnes and Wright. During this interview Mr Cowan told police that he was definitely back home by 3.00pm but it could have been as early as 2.30pm. He confirmed to police that a land line call from his home made at 12.50pm would have been him calling his friend just before he left to collect the mulcher. A phone call made from his mobile telephone to his home at 12.58pm indicated that he had left home some time between 12.50 and 12.58pm. He confirmed he had seen the broken-down bus near the Woombye turn off. He did not mention seeing or visiting any other person while he was away from his home. Wright asked him, at the end of the interview, "If you had of [sic] abducted Daniel, would you tell me?" to which he replied, "Probably not."

[54] Mr Cowan was again interviewed by police on 14 September 2006. The prosecution will not adduce this interview with police in evidence-in-chief at the trial. This concession was also correctly made. The police officers involved in that interview were Howard Hickey, Aaron Walker and Wright. Howard Hickey is now a Detective Senior Sergeant in the homicide investigation unit at State Crime Command in Brisbane. He was also based at the homicide unit in 2006. Mr Walker is now a principal investigator with the Australian Sports Anti-Doping Authority. As at September 2006 he was a Detective Sergeant based at the homicide investigation unit of the Queensland Police. Wright made arrangements with Mr Cowan to meet at the police headquarters at Roma Street, Brisbane. The interview took place in an interview room in the homicide investigation unit on the second floor of police headquarters. 14

[55] When queried about his estimates of time for his movements on 7 December 2003, the defendant for the first time told police that he had visited a drug dealer, Sandra Drummond, to buy cannabis. She was at her house with her partner Kevin Fitzgerald. He said he was there for "a good half an hour." He said that he had not mentioned this earlier as he did not want to implicate her.

[56] The topic arose because Mr Cowan had raised that alibi evidence in Family Court proceedings where he sought access to his children. It appears that the judge in that case referred this evidence to the police. During this police interview Mr Cowan continued to deny having seen Daniel Morcombe at all. He was questioned in detail about the timing of his movements on the day Daniel disappeared.

[57] A dispute arose during the pre-trial hearing as to what occurred at the end of that interview. It is necessary to resolve that dispute as it bears on the arguments raised for excluding the admissions made by the applicant in August 2011.

[58] Brett Cowan gave evidence that after the interview concluded he said to the police officers, "If you want to speak to me again, you can arrest me and take me to court." He could not recall if they responded. Each of the three police officers denied in his evidence that he said anything of that sort. Their evidence was that there was no hostility shown by Mr Cowan to the police. It does not appear in the transcript of the interview where both he and his father expressed satisfaction with the way they had been treated by the police and did not express any unwillingness to speak to them again. Mr Cowan asserted that the words were said by him after the interview was concluded and therefore, inferentially, after the tape recording had ceased.

[59] In evidence at the pre-trial hearing was the transcript of a conversation Cowan had with the undercover police officer #452 known to Cowan as Paul Fitzsimmons on 4 August 2011 after "Craig", undercover operative #578, who pretended to be a corrupt police officer told Cowan that there was a subpoena coming from Queensland for Cowan to appear at the coroner's court. The following conversation took place between Cowan (referred to in the transcript as "BC") and the undercover police officer (referred to in the transcript as "Paul"): "BC That's like when they were, the coppers were still questioning me about it when it first happened — Paul Yeah. BC - and I was getting jack of it 'cause I was going over the same shit over and over – Paul That's what they do. BC – and I just turned around and said to them and I had me old man with me the last time, and they were in fuckin' homicide squad in Brisbane and I just turned around and said to 'em this is the last time, that's it – Paul Yeah. BC – if you ever want to speak to me again you only arrest me for it. Paul Yeah, just fuck off. BC You know, take me to court, fuckin' – Paul Man, I've done shit you know fuckin', cleared me man so, you know who gives a flying fuck mate I'm telling ya. You know how they make this disappear? They really make things disappear man. 15

BC [UI] Be good to make my past disappear. Paul Mate that's what I mean it's all about the future man. BC Yeah. Paul Shit'll disappear. BC Well that was a, coming out of the closet and knowing that if I ever did something like that again I'd be locked up for life – Paul Yeah. BC – never to be released, habitual offender. Paul Yeah. BC I did me time easy in jail, but I don't wanna spend the rest of me life in there."

[60] After Cowan was taken to that passage in examination-in-chief he said, "The last time I spoke to the police at the police headquarters with my father … The last thing I more or less said to them about if they wanted to speak to me again, arrest me and take me to court."

[61] The cross-examination of Mr Cowan was most effective in showing he was readily prepared to lie when giving evidence at the pre-trial hearing. Accordingly it was impossible to accept any of his evidence at face value. It was not possible to act on anything said by the applicant unless it was, as the learned prosecutor submitted, corroborated or supported by other evidence, was a statement against interest, accorded with common sense or was not in dispute.

[62] Specifically with regard to what occurred after the end of the interview on 14 September 2006, he affirmed in cross-examination on 11 November 2013 that he said to the police in the presence of his father, "if you want to speak to me again, then you can arrest me and take me to court." He was not sure if it occurred outside the interview room or at the doorway of the interview room. He said he could not remember if his father had said anything. He specifically denied any recollection of his father saying anything similar to the police. He denied he was lying and said his father would back him up if he could give evidence but that his father was away at the moment.

[63] He was taken to the transcript of the interview and agreed that he had told the police that he was prepared to talk to the police again if something else came up. He had told police that he had no complaint about the way he was treated on that day. He agreed that when his father was asked by the police if he had a problem, his father said: "No, I'm quite happy. You've you guys have got a job to do and you're doing it to the best of your ability. No worries. If I had a worry I would have voiced it before this."

[64] Cowan said that afterwards on their way down to the car in the car park his father said "they were using, like, good cop/bad cop." He said he believed they were still inside police headquarters. He asserted that police had escorted them to the lift and then left them to take the lift to the lobby alone and walk out through the lobby unescorted. This was contradicted by his father. It was also contradicted by evidence by Aaron Walker and I do not accept that a suspect in a murder case would be allowed to leave the second floor of police headquarters unescorted. This was just one of many examples of Cowan's untruthfulness when giving evidence. 16

[65] He was then referred in cross-examination to what he said to Paul on 9 August 2011 about what happened after the interview with the police in September 2006. In this transcript, Cowan is referred to as POI and Paul as #452. The following conversation was recorded: "POI Yeah well fuckin/ um, I like always told Dad, took Dad with me #452 Yeah POI You know #452 Yeah POI When he was up there last time, he had a go at the coppers for the, the way they were conducting themselves #452 Yeah that's good, fuckin' oath – Background – Clanging POI and next time they speak to me arrest me or fuck off. #452 Otherwise fuck off."

[66] He was not able to explain why he had said that but denied that he was big-noting himself and that both his assertion of what his father had said and his assertion of what he had told police made to Paul were examples of false bravado.

[67] On 19 November 2013, Cowan's counsel was granted leave to call Cowan's father. He was, the court was told, at sea from 24 October to 16 November 2013.

[68] Cowan's father, Peter Cowan, has apparently lived an entirely respectable life with responsible occupations including 33 years in the Australian regular Army which he said had left him with the medical problem of post traumatic stress disorder (PTSD). In examination-in-chief he said that as he and his son were leaving the interview, they were being escorted by one detective and there were another two detectives behind and his son turned around and said, "If this is going to go on and I'm required again, you'd either - better arrest or charge me." After they got out of the lift he said his son turned around and said to him, "Dad, I mean when I said … I'm fed up … If they got anything against me … they should arrest and charge me." This was said at the front door of the police station while the police officer who was escorting them was unlocking the door.

[69] The cross-examination revealed that he and his wife had arrived in Fremantle after a cruise on 9 November 2013 and that 16 November was the date that they had arrived back in the town in Queensland where they lived. He was not at sea, as I had been informed, until 16 November 2013. Peter Cowan said that the first time he was asked to recall the conversation was on 17 November 2013 when Brett Cowan rang him. He was certain that there had been no prior contact about it. He said his recollection of what his son said in September 2006 has never changed.

[70] When asked about the interview at police headquarters, Peter Cowan asserted that it had not been conducted in an interview room but in an open office space with desks, computers etc. This was contradicted by the video recording of the interview which showed that it took place in an interview room and not an open area. Peter Cowan agreed that he told the police that he was happy with what had happened as recorded in the transcript of the interview. He vehemently denied any suggestion that he had "a go at the coppers" for the way they were treating his son. It was only his son 17

who had spoken and the police ignored it although he thought they would have heard it.

[71] Mr Byrne QC for the prosecution put to Peter Cowan a telephone conversation he had had with his son on 13 November 2013 while Mr and Mrs Cowan were travelling by hire car to Albany in Western Australia. After some prompting, he agreed that the conversation had taken place ie that in fact he spoke to his son for the first time about this matter on 13 November not 17 November 2013. Brett Cowan had told his father what he said to the police on the way out and asked his father if he remembered that. He told his father that he had been called a liar in court. After first thinking that they had spoken to a female police officer at police headquarters Peter Cowan then said to his son on the telephone "Yeah I can remember. I think it was when we were walking back to the car 'cause you were still - you were still - still are - you were pretty - what would you say? Um, bit fiery."

[72] In the telephone conversation between Brett Cowan and his father, Brett said to him: "Yeah. But - yeah. But do you remember it's not what I said to you. Do you remember me saying it to them?"

[73] To which Mr Cowan Snr replied: "You said that to the young guy from Maroochydore, the young detective, I think it was."

[74] His explanation for why he now remembered that his son said that not to him on the way back to the car or only to the young police officer from Maroochydore but to the other two detectives was that he went home and discussed it with his wife and could now "recall both incidents". His wife was not present at police headquarters.

[75] It then appeared from the telephone conversation that Peter Cowan had completely forgotten being present during the interview at police headquarters with his son, notwithstanding the fact that the record of that interview shows that he was. In cross-examination he said he did not see any cameras in the room where they were. However in the transcript of the interview, he agreed with his son when he pointed out three cameras.

[76] It was not suggested that Mr Cowan Snr was being deliberately untruthful. There are a number of factors however which lead me not to be able to rely on his version. He clearly had difficulty remembering the specific details unless and until his son told him precisely what he wanted him to remember. Even so, there were a number of different versions of it until he went home and discussed it with his wife and then "vividly" recalled what happened. His evidence suggested that he was mistaken about what happened. The circumstances of this case, as well as his history of PTSD, have understandably put him under enormous emotional strain. His memory of what occurred after extensive prompting by his son and discussion with his wife could not be considered to be a reliable account.

[77] In all of these circumstances I conclude that neither Brett Cowan nor his father expressed any hostility to the police when they were leaving police headquarters and Brett Cowan had certainly not indicated that he was not prepared to speak to the police again. Brett Cowan was being bombastically untruthful when he asserted 18

that to the undercover police and deliberately untruthful when he reiterated it when giving evidence at the pre-trial hearing.

[78] That Cowan had told the police that he was not prepared to speak to them again was one of the bases for the applicant's submission that his confessions should be excluded in the exercise of the fairness discretion. That factual basis was not made out by the defendant.

[79] Following what Mr Cowan had told police about Sandra Drummond, on 15 September 2006, two police officers, Tracey Barnes and Detective Sergeant Farlow took a statement from Drummond. She confirmed that Cowan was a frequent drop in visitor, but that she could not now recall whether he had been at her house on 7 December 2003.

[80] Assistant Commissioner Condon said that there were a number of persons of interest during the investigation and there were a small number of persons that the police were neither able to exculpate or inculpate so he caused a number of cold case reviews to take place in regard to those persons of interest. The cold case review with regard to Cowan was carried out from December 2010 by Grant Linwood, a Detective Senior Constable stationed at the Homicide Investigation Unit, and Detective Sergeant Emma Macindoe. They reviewed all the material available and conducted extensive investigations themselves.

[81] Police were still unable to exculpate or inculpate Mr Cowan and Assistant Commissioner Condon considered by late December 2010 that it might be appropriate to use the USCUT technique on him. He formed that view on the basis of the cold case review. USCUT stands for Unsolved Serious Crime Undercover Technique.

[82] According to Assistant Commissioner Condon there were good reasons not to use the USCUT technique on other persons of interest either because such persons were in custody, their stories inculpating themselves or others did not appear to be true or because the evidence against the person was insufficient to warrant the use of USCUT. Assistant Commissioner Condon said that the things that made Mr Cowan of interest to him were that he admitted he had gone to Nambour on the day of the abduction, 7 December 2003, to pick up a shredder and that he had driven past the abduction site at around the time that police believed Daniel Morcombe was present and had also driven past the abduction site at around the time that a number of other witnesses had indicated they saw a boy believed to be Daniel Morcombe in the underpass. Mr Cowan indicated he had not seen the boy at that time. The initial alibi was fairly simple and he had a relevant criminal history. He had no satisfactory explanation for some 30 to 50 minutes on that day.

[83] By late 2010, it had been decided to hold a coronial inquest into the disappearance of Daniel Morcombe. The inquest commenced on 11 October 2010. Detective Linwood contacted Cowan on his mobile phone on 18, 21 and 27 February and 2, 21 and 23 March 2011 to arrange his attendance at the inquest.

[84] On 2 March 2011 Detective Linwood submitted a report on his review of Cowan. On 14 March 2011, Linwood attended a meeting with Assistant Commissioner Condon and senior staff from the covert unit and he was subsequently advised that covert strategies would be implemented. Linwood remains as the homicide case officer. 19

[85] Assistant Commissioner Condon authorised a covert investigation of Mr Cowan using a Queensland based covert police officer. The initial objective was to conduct an intelligence probe for approximately two weeks. On 28 March 2011 Linwood met with John Carey who was then a Detective Senior Constable attached to the Covert Operations Unit about using an undercover police officer. Part of the intelligence probe was to build a rapport with Mr Cowan. That rapport was in fact established on the return flight from Brisbane to Perth. At that stage there was no definite plan to use any other undercover operation.

The Inquest

[86] Mr Cowan gave evidence at the coronial inquest on 31 March and 1 April 2011. He was living in Western Australia by this time and flew to Brisbane to give evidence. His evidence was that he was not legally represented at the inquest and was not informed by anyone that he had a right to claim privilege. The relevant section of the Coroners Act 2003, s 39, provided: "39 Incriminating evidence (1) This section applies if a witness refuses to give oral evidence at an inquest because the evidence would tend to incriminate the person. (2) The coroner may require the witness to give evidence that would tend to incriminate the witness if the coroner is satisfied that it is in the public interest for the witness to do so. (3) The evidence is not admissible against the witness in any other proceeding, other than a proceeding for perjury. (4) Derivative evidence is not admissible against the witness in a criminal proceeding. (5) In this section — ‘derivative evidence’ means any information, document or other evidence obtained as a direct or indirect result of the evidence given by the witness."

[87] The applicant was able to refuse, but would then be compelled, to answer questions at the inquest, and so be protected from use of the evidence he gave in criminal proceedings against him and the use of any derivative evidence as a result, but that was not conveyed to him with regard to questions relating to the abduction and killing of Daniel Morcombe. The only time he was warned was in relation to other sexual offences. There is no requirement in s 39 for the coroner to inform the witness unless he refuses to answer. He did not refuse to answer questions so the occasion for informing him did not arise. Had he been told that he, nevertheless, would have been obliged to give evidence at the inquest. The prosecution does not intend to lead any evidence given by him at the inquest in the criminal proceedings against him. There was no operative impropriety or illegality.

[88] It does not appear, in any event, that the prosecution intends to lead evidence-in- chief of what was said by Cowan at the inquest.

[89] Cowan said he received a telephone call where a "female" told him that there was a subpoena for him to attend, that he had to attend or there would be a warrant for his arrest. His transport and accommodation was arranged and he was met at the airport in Brisbane by Detective Linwood and Detective Macindoe. They also transported him to and from the hotel arranged for him and the inquest. 20

[90] Cowan said he found the questioning at the inquest "in a way, threatening." He said the persons asking him questions were saying to him "your alibi doesn't add up … it's you that did it."

[91] Because of the significance attached at the pre-trial hearing to his questioning at the inquest, I shall describe it in some detail.

[92] At the inquest Mr Cowan was first asked questions by Mr Johns, counsel assisting the coroner. He asked him questions about his family and his work and hobbies and his health and then asked him about his criminal history, in particular his two sex offences against children. Cowan said neither of them involved violence.

[93] Mr Johns then asked him about the police investigation of him with regard to the disappearance of Daniel Morcombe and that after the first interview with the police that they had concerns in relation to a period of time that they were having difficulty accounting for. He then asked him about the visit to Sandy Drummond's house. He was asked if it was important for him that he was believed with regard to going to Sandy Drummond's house and he said it was not really important because he had nothing to do with Daniel's disappearance at all, although he agreed that his life was a lot easier if he were believed in relation to the Sandy Drummond incident and the suspicion would fall off him. He also agreed that without the Sandy Drummond half an hour, people would reasonably hold some suspicion, rightly or wrongly, about him.

[94] Mr Johns explained that the role of the inquest as well as seeking to find out who it was that abducted Daniel Morcombe was also to attempt to rule out those that they could rule out. Mr Johns said: "If you can establish, to his Honour's satisfaction, that you're not involved then it's likely that will be the end of it. "

Mr Cowan agreed with that. He was asked if he was prepared to be open and honest in regard to the precise details of what occurred on that day and he said that he was.

[95] Mr Johns indicated that he was going to ask Mr Cowan about offences that he may have committed of which he had not been convicted. The coroner then informed Mr Cowan that he was entitled to object to answering the questions but he, the coroner, was going to direct that he nonetheless answer them but that any answers that he then gave could not be used against him. Cowan did not admit to other sexual offences except those that he committed before he was an adult.

[96] He was then asked about where he lived in the period leading up to 2003, his relationship with his wife and her parents and with the church. He said his relationship with his wife was not good in December 2003. He admitted he was smoking cannabis in 2003. He said that after he picked up the mulcher he saw the broken down bus. He then said he had been thinking about it and he did not know whether he had actually seen the bus or heard it on the news or a re-enactment but had put in his statement that he had seen it as he was going to stick with that he had seen the bus.

[97] During his evidence on the first day of his appearance at the inquest, Cowan said he had been to Sandy Drummond's to buy cannabis and then volunteered that while he was there another man dropped in for five to 10 minutes. 21

[98] With regard to the offence in Brisbane he said he pleaded not guilty to sodomy, indecent dealing and deprivation of liberty. He was convicted of indecent dealing and deprivation of liberty. He said he attempted to sodomise the boy but did not. He denied that he inserted his finger into the boy's anus. The boy in Brisbane was seven years old. He denied that he put his hands around the boy's neck. He agreed that after the offence he then went back to fairly mundane tasks. He went back outside and finished working on the pipes which was the job he was doing on that day. The whole episode only took five to 10 minutes.

[99] The episode in the Northern Territory took about 15 to 20 minutes. He denied affixiating the boy in Darwin. With regard to the offences in Darwin he had at first denied any involvement and in fact said to the police: "I hope you catch the bastard". Four days later after police asked for a DNA sample he confessed. Cowan was asked in some detail about the offence against the boy in Darwin. He denied that he choked the boy. He said he was carrying him under his arm with his arm around the boy's torso. He denied putting his hands around his throat.

[100] During his questioning on 1 April 2011, Mr Johns put to Mr Cowan the various matters which made him a strong suspect in the Daniel Morcombe abduction such as the rarity of this type of crime, his criminal history for similar crimes, that he resembled at least one of the comfit sketches prepared as a result of descriptions by passers by in the bus on that day, that a person had observed a motor vehicle similar to his parked near the place where the abduction occurred at about the time the abduction occurred, and asked him why it was that he did not reveal in the interviews with police particularly the one in 2005 that he had an alibi, as he had gone to his drug dealer's house. In answer to that, Cowan referred to the fact that his car had been forensically tested and that other observations made by passers by did not implicate him, such as the fact that he had never owned a blue car and did not have tattoos on his legs. He said that he did not say anything about going to Sandy Drummond's house because he did not want to implicate her as being a drug dealer.

38 [101] He accepted that he was a reasonably accomplished liar but said he had nothing to do with Daniel Morcombe's disappearance. Mr Johns reminded him that he had given an account in the 2006 interview of his friend "Wazza" supplying him with drugs even though that was not relevant to his alibi. Mr Johns explained to Mr Cowan that the role of the coroner was that at the end of the hearing of evidence, if he formed a reasonable suspicion that anyone had committed an offence from the material he had heard, he was obligated to pass that information on to the Director of Public Prosecutions.

[102] Mr Cowan was then questioned by Mr Johns about a number of sexual offences for which he was not convicted. Towards the end of his questioning of Mr Cowan, Mr Johns put to him the following: "So what we're left with is this situation where you, a violent sexual offender with a proven history, one of the very few people around with a proven history of kidnapping boys and assaulting them in such a way that it could easily lead to their death, is right on the scene, right at the time we're interested in with Daniel Morcombe. And on

38 He denied that when he was cross-examined at the pre-trial hearing and had no explanation when his admission at the inquest about being a reasonably accomplished liar was put to him. 22

your own version, discounting this fanciful alibi that you've come up with three years later, you've got between 35 and 50 minutes that you cannot account for. That time must be accounted for, Mr Cowan. Now, the list of coincidences, as I put to you this morning, are of course, rubbish, if looked at in the terms of you being unlucky or similar. The fact is that all of those things, this incredible coincidence, just could not be expected to occur in the ordinary course of events, could it?"

Mr Cowan replied no to this question.

[103] Mr Cowan was then cross-examined by Mr MacSporran SC who acted for the Queensland Police Service. Mr MacSporran took him in detail through the events on the day when Daniel Morcombe disappeared and what he did at the relevant times. Mr MacSporran said to him the whole case came right down to the "unaccounted for time on your way home from Frank Davis' place." He then questioned him about why it was that he said for the first time on the previous day, that there was another man at Sandy Drummond's house. Mr Cowan then said he could not now remember whether there was someone else there or not. Mr MacSporran questioned him about the fact that when he told the police in 2006 about being at Sandy Drummond's house he was specifically asked if anyone else was there and he said that nobody was there apart from her partner Kevin.

[104] At the pre-trial hearing Mr Cowan asserted that Sandra Drummond was a dealer in speed, cocaine and heroin, as well as cannabis.

[105] After Mr MacSporran's questions, the coroner then asked Mr Cowan some questions: "Mr Cowan, it's almost beyond doubt that at the time you drove past the Kiel Mountain overpass on your way back to your place, Daniel Morcombe was standing on the left-hand side of the road as you head south. He was waiting for the bus that you saw broken down. He would have been anxiously looking to see where the bus was; it was running late. He wouldn't have been hiding back in the bushes? -- Yep.

He was wearing a bright red T-shirt? --I honestly didn't see him, sir.

How could you fail to see him? -- Concentrating on the road.

Looking straight ahead, you would have seen a boy in a red T-shirt standing beside it? -- I don't know, sir. I could have been overtaking a car or anything. I did not see Daniel standing on the side of the road. I did not stop anywhere near the overpass. I had nothing to do with Daniel's disappearance."

[106] That was followed by questions from Mr Boyce representing the Morcombe family. Mr Boyce asked him about his drug use at the time of Daniel Morcombe's disappearance and he said that he would have been affected by cannabis on that day. He said it made him feel stoned. He then volunteered that he was stoned on 1 April 2011 when he was giving evidence. He said he had had three cones about 20 23

minutes before he was picked up that morning and that he had been stoned when giving evidence on the previous day.

[107] The coroner then questioned him again about his alibi and the fact that he had not raised it for some two and a half years after the event when he would have been confident that Sandra Drummond and Kevin Fitzgerald would not have been in a position to contradict him. Mr Cowan reiterated that was at Kevin and Sandy's place, he bought drugs from them and he knew he was there for about half an hour.

[108] Mr Johns then re-examined Mr Cowan and put to him that Sandy had given confident evidence that his claim that he was always there for at least half an hour was not true and that often he was there for less than half an hour (and often for a lot more than half an hour). Mr Johns then asked him a lot of questions about vehicles he had owned in particular a blue Nissan. Mr Johns then questioned him about other people who might have been suspected in relation to the Morcombe abduction.

[109] Cowan gave evidence at the pre-trial hearing that: "I think it was the coroner said that it - well, that if I could prove an airtight alibi, that there would be no further need to be questioned or take further part in any of the proceedings and I'd be more or less free to go."

[110] That was not supported by the transcript of the, admittedly robust, questioning of Mr Cowan at the inquest.

[111] Cowan said he thought the coroner had absolute power to have him charged. He said the lasting impression he had after the questions at the inquest was that he either prove his alibi or be arrested and charged.

The covert investigation

[112] Cowan returned to Western Australia by plane on 1 April 2011. Assistant Commissioner Condon received daily updates on the evidence that Mr Cowan gave at the coronial inquest. He also received updates in relation to the additional evidence that Sandra Drummond and Kevin Fitzgerald gave about Mr Cowan's alibi after Mr Cowan had finished giving evidence. Further statements were taken from them and they gave evidence at the inquest on 6 April 2011. Assistant Commissioner Condon was also briefed about the inquiries which were made with the RSL and the use of poker machine cards. In his evidence at the pre-trial hearing, Cowan said he heard about Sandy's evidence on the news within a week after he had given evidence.

[113] Counsel for Mr Cowan summarised the evidence given by Drummond and Fitzgerald as follows: Kevin Fitzgerald said he had never been shown a mulcher by the applicant and expected, given his interest in machinery, that that is something he would have remembered. Both Ms Drummond and Mr Fitzgerald also gave evidence that they often were at the Beerwah RSL on Sunday playing on poker machines using their loyalty cards. Police investigated that and received documentation on 6 April 2011 from a witness, Mr Gersbach, showing that Kevin Fitzgerald‘s and Sandra Drummond's betting cards were used at the Beerwah RSL at 2.20pm and 2.22pm on 7 December 2003. In an addendum he said he could not say what time the cards were inserted, but one of them had been used for 70 plays 24

which on average would take about 10 minutes. Ms Drummond also provided a further statement saying that she was unsure whether they left immediately after playing the machine and went home, or whether they stayed on. If they left immediately she said her home was a five to 10 minute drive away. That evidence confined the operation of the applicant's alibi.

[114] A Queensland undercover police officer, who used the name Joe Emery, sat next to Cowan on the flight back to Perth. They struck up a conversation and Cowan gave Emery advice about cars and accommodation in Perth and gave him his mobile telephone number.

[115] Assistant Commissioner Condon was briefed on that and was satisfied that the police should commence the process of what is known as the USCUT technology. Assistant Commissioner Condon approved the commencement of that process.

[116] The USCUT technology involves the performance of a number of scenario type situations involving undercover police officers. Assistant Commissioner Condon had no input into the nature of or the timing of the scenarios that were used however sometimes he was briefed about scenarios that were planned and other times he was briefed after they had occurred.

[117] The controller of the covert operation in Queensland was Detective Carey. The controller of the covert operation in Western Australia was known by the numerical designation #508. He designed the strategies or scenarios used in consultation with his officer in charge. He then briefed the undercover police officers who were to play out that scenario and debrief them individually after each scenario.

[118] It was an extremely useful technique to use in this investigation for much the same reasons as were set out by the plurality in Tofilau at [413]. The police had failed - and their failure was not said to be culpable - to collect sufficient evidence against Cowan to charge him. The crime being investigated was very serious. It had remained unsolved for almost eight years with the inevitable strain on the family of the victim and presumably fear in the community as to the danger posed by the person who had committed the crime. The scenario technique was one that had been in use in Canada and previously in Australia, where its use had been approved, albeit with some cautious reservations, by the High Court.

[119] It was not embarked upon as an unthinking frolic by junior officers but deliberately selected by senior officers. No alternative was realistically available if the police investigation was to continue. It was reasonable for police to seek to employ this technique in solving a cold case involving the murder of a child. The technique was employed in a careful, skilful and discriminating way with considerable care to avoid illegality.

[120] The suggestion that any actual offence of supplying illegal drugs was committed in the course of the investigation is, as the prosecution submitted, tenuous. The applicant referred to no Western Australian legislation which made the acts involved criminal. Even if it were, the transgression was of a technical and minor nature.

[121] No doubt psychological pressure was built up, but conventional police interrogation of the most proper kind naturally involves pressure. Cowan had experience of police questioning and knew that he was not obliged to answer questions which 25

might incriminate himself. He had not claimed any right to silence when questioned by police in relation to this matter previously. He actively co-operated with the undercover officers. The questioning of him took place in the course of a relationship which he entered freely and did not exploit some pre-existing or collateral relationship. There was no illegality and the rules relating to questioning by covert police did not apply. The failure of other investigative methods made it necessary and desirable to conduct an undercover operation to elicit the truth from Cowan either to substantiate his involvement or exonerate him. The operatives stressed the need to tell the truth. The undercover officers did not prey on any special characteristics of Cowan related to his gender, race, age, education or health. As their Honours concluded at [529]: "The means of elicitation were not so disproportionate to the problem confronting the police as to be inherently unfair … ."

[122] On 27 April 2011, the defendant had registered a change of his name from Brett Peter Cowan to "Shaddo N-unya Hunter". Cowan explained to undercover police officers that Shadow was his dog's name and he thought of Hunter when he was watching television and it "flows nicely". N-unya meant "Nunya Business." I was informed by his counsel during the pre-trial hearing that steps have been taken to reverse that change of name and that he is presently known, once again, as Brett Peter Cowan, the name used on the indictment and by which he was known during the pre-trial hearing. He asserted he changed his name because he thought his birth name was going to be published. It appears that the reason why that particularly concerned him was because he was aware of the stigma attached to convicted sex offenders.

[123] Mr Cowan's evidence about this during the pre-trial hearing showed extreme prevarication. He at first denied that that was one of the reasons he changed his name. He later admitted that it was one of the reasons saying he had denied it was because it was not the only reason. When faced with the stark contradiction between his answers to the same question, he admitted he had been lying. He agreed that he was prepared to lie in this proceeding to suit his own purposes. He denied however that he was prepared to perjure himself.

[124] The credibility of Mr Cowan's evidence has to be seen in light of the following exchange between himself and Mr Byrne QC which appeared at the end of his cross-examination at the pre-trial hearing: "I suggest to you that the deliberately false answers that you have given whilst testifying in this hearing further demonstrates your lack of respect for the importance of court proceedings. Do you agree?--- Yes.

You are a person, Mr Cowan, I suggest, who tells lies to authority figures to suit your own means. Do you agree?--- Not all the time, no.

I suggest that the reason that you've told deliberate lies here is because you wish to portray yourself in the best light in order for your applications to succeed. Do you agree with that or not?---I don't understand what you mean. Sorry.

26

You've deliberately lied to give yourself the best chance in this hearing. That's what I'm suggesting?---Yes.

Perhaps the record might reflect there was a pause of about eight seconds before that answer was given."

[125] After establishing what appeared to be a close friendship with Cowan, on 4 May 2011 Emery introduced him to a man known as Paul or Fitzy. This was the Western Australian police officer who was covert operative #452 referred to earlier in these reasons. Emery gradually involved Cowan in what appeared to be criminal activity. Later Emery appeared to take money and a passport from Fitzy's boss, Jeff (another undercover police officer). It was said that Emery had "a small problem to be taken care of" so he was told to travel to London and keep a low profile for the next six months. He was told to give Jeff his mobile telephone and to contact no-one apart from him over the following six months.

[126] The Western Australian police then acted out various scenarios with Cowan. At one stage Cowan rang Linwood concerned about media visiting him.

[127] In late April or early May 2011, Assistant Commissioner Condon became aware from correspondence that counsel assisting the coroner, Mr Johns, wished then to recall Mr Cowan. Mr Johns' evidence was that he formed that view shortly after Cowan completed giving his evidence as Cowan had admitted to being under the influence of cannabis when he gave his evidence. Subsequently he wanted him recalled because of further evidence that had been obtained in relation to his alibi.

[128] Assistant Commissioner Condon formed the view that an early recall of Mr Cowan might have an adverse impact on what the police were doing in Western Australia. Accordingly on 3 June 2011 Assistant Commissioner Condon spoke to the coroner who was then prepared to delay the recall of Mr Cowan to allow the police to conduct their investigations in Western Australia. It nevertheless was always the intention of the coroner to recall Mr Cowan and there can be no doubt that there was always a proper basis for recalling Mr Cowan by issuing a notice to attend the inquest. The recall of Mr Cowan was not a ploy used by the undercover police. However once it was known that he would be recalled it was contemplated that when the notice to attend issued it would be woven into the covert scenarios. In these circumstances, it was not unfair for the police to request that the issue of the notice to appear be delayed. Nor was it unfair to the defendant to weave a legitimately issued notice to appear into their undercover scenarios. The issue of the notice to appear was not attended by any bad faith, impropriety or illegality on the part of the coroner and his staff or of the police.

[129] The USCUT strategy involved the playing out of various scenarios so that undercover police appeared to be part of a crime gang which allowed Mr Cowan increasingly more involvement in the criminal activities of the gang. Members of the gang, whose structure was hierarchical, stressed to Cowan the necessity for trust, honesty and loyalty. The gang did not actually engage in any criminal activity but appeared to engage in loan sharking, gun running, drug dealing, blackmail, burglary, prostitution and diamond smuggling. Mr Cowan was told that the "big boss" of the national crime syndicate was Arnold and introduced to the idea that there was nothing that could not be fixed and that there was a lot of money to be 27

made by being involved with the gang and that there was a lot of work coming up. Cowan was constantly told that he could leave at any time.

[130] The covert controller in Western Australia said the issuing of the notice to appear was to be used as the catalyst for raising talk about the crime of which Cowan was suspected with the "crime boss". Because the police did not want to engage in illegal activity it was important to them that there was such a notice in existence when Cowan was told there was. He did not request that such a notice be issued but when he found out that there was an intention for Cowan to be recalled to the coronial inquest he asked Detective Carey for it to be held off so that it would not affect what they were trying to do in Western Australia.

[131] Assistant Commissioner Condon said that in late July 2011 the Western Australian investigation had progressed in a positive way and that if the coroner was going to nominate a particular time for the issue of the notice to attend for Mr Cowan to be recalled then that would be a good time for the police. He informed Sarah Neale of the Queensland Police Service solicitor's office of that. The notice to attend was subsequently sworn on 29 July 2011. After their meeting on 3 June 2011, Assistant Commissioner Condon did not himself have any discussions with the coroner about the timing of the issue of the notice to attend.

[132] The Western Australian police were informed that the notice to attend had been issued.

[133] The covert police officer #578, who played the part of the corrupt police officer Craig, was instructed to raise with Mr Cowan that a notice to attend had been issued by the coroner's court which would require Cowan to reappear at the inquest. He said the purpose was to raise the Daniel Morcombe investigation. The West Australian police generally referred to the notice as a subpoena. Paul (#452) was also briefed to raise the issue of the notice with Mr Cowan. The Western Australian covert controller, #508, agreed that the purpose of raising the issuing of the notice with Mr Cowan was "to keep the pressure of the fact that there was another subpoena clearly in the mind of Mr Cowan." Detective Carey said the purpose of raising it was as a trigger for conversation. He agreed when it was put to him by defence counsel that "it was really an attempt to open up communication about Daniel Morcombe without asking questions."

[134] On 4 August 2011, Paul met up with Cowan. Paul talked to Cowan about the good times they would have once Cowan had been accepted into the gang. He said that Arnold could fix things. They then met Craig. Craig said that there was a subpoena from Queensland for Brett from the coroner's court. Cowan said, "That's been and gone." Craig told him that it was a "fresh" one "but that's somethin' we can fix as well." Paul said he would have to tell Jeff about that and Craig said he would do so over a beer.

[135] In his evidence at the pre-trial hearing, Cowan said this in particular reminded him of what was said at the inquest that if he could come up with an airtight alibi that that would be the end of his involvement and if he could not, then he would be arrested and put in jail or prosecuted. That was not what was said at the inquest and that version was rather different from what Cowan said immediately afterwards in his unguarded conversation with Paul. 28

[136] When Craig left, Cowan told Paul that he had two sex offences in his past and he was living in the area from which Daniel Morcombe went missing. He then said, "And um, I know I had nothin' to do with it. I'm, I'm fuckin' my alibi is a hundred percent." He was concerned because of his convictions but he thought it was all dealt with. That was one of the reasons he changed his name. It was also one of the reasons he could not see his children. Paul said, "Mate we've got people who'll look after shit." Cowan said, "Oh, well it's, it's played on my mind a little bit just having those sort of convictions against me because I know what fuckin' people think of paedophiles … And, as you say the past is the fuckin' past why can't cunts forget about it?" Paul told him that it could be fixed, "the bosses will just make everything cool." Cowan said that subpoena would not work anyway because he had changed his name legally.

[137] When giving evidence, Cowan denied that one of the reasons he changed his name was because of his criminal history but when taken to this passage, agreed that it was one of the reasons. He could give no explanation for the change in his evidence.

[138] Cowan and Paul then met with Jeff. They discussed the subpoena and Cowan said that it was about the Daniel Morcombe disappearance. He said that, as he had told Paul, he had molested two boys and was living in the area where Daniel Morcombe disappeared so he was one of those suspects. He said he changed his name so he could start afresh. He said the subpoena would be null and void because he had changed his name. He said he had an alibi because he was at home and "picked up a mulcher and all that sort of stuff." Jeff asked him if he was right to work on the big job coming up. Cowan expressed enthusiasm about it. Jeff told him not to worry and Cowan said, "Well I'm not worried about that over there anyway - … 'cause I know I had nothing to do with it so, that's no skin off my nose but - … the stigma of the sex offences that, is the big thing."

[139] Cowan subsequently mentioned to Paul that he had told the police that he did not wish to speak to them again. As previously analysed in these reasons, this was not true, it was an example of bravado. He did however tell Paul that it would be good to make his past disappear. This was obviously a matter of great importance to Cowan, because he said that his criminal history meant that if he did anything like that again he would be locked up for life.

[140] A crucial development in the USCUT covert strategy occurred on 9 August 2011. Assistant Commissioner Condon was aware of an intention to utilise a particular scenario on that date. He had approved the travel of some Queensland police officers to Western Australia for that day. He approved the utilisation of resources to track the movements of Mr Cowan on 10 August 2011.

[141] John Carey and Grant Linwood briefed the police officer who was playing Arnold with an overview into their investigation. Arnold said his role "was to elicit the truth from Mr Cowan to either substantiate his involvement or exonerate him from the inquiry." Arnold's role as the "big boss" was that he had to accept Mr Cowan for him to be part of the big job that the criminal gang was planning.

[142] On 9 August 2011 the covert police officer known as Paul picked up Brett Cowan, then known as Shaddo Hunter, in the police officer's motor vehicle. During the car journey Paul answered his phone and said it was "the boss". By that he was 29

referring to Jeff. He told Mr Cowan that Arnold wanted to have a chat with him at the Hyatt Hotel in Perth which meant that they had to turn around and go back to Perth. Paul told Mr Cowan that it was probably about Cowan "gettin' a spot on a decent job." In his evidence at the pre-trial hearing Cowan falsely denied that participation in the big job and the other jobs coming up was important to him. As can be seen from what he said at the time, he hoped to make $100,000 from his participation in the big job and buy himself an FJ Cruiser.

[143] Cowan and Paul returned to Perth where Cowan met with an undercover police officer posing as the "big boss", Arnold. Cowan had previously been introduced to Arnold in Melbourne. Arnold spoke to Cowan on his own. Cowan told him he was enjoying being part of the group and what they were doing. Arnold told him that a couple of things had come up that they needed to talk about. Cowan said that he thought that had been all dealt with. Arnold reiterated that what they did was based on respect and honesty. He said he did not care what Cowan had done. He asked Cowan if there was anything he needed to tell him and Cowan said that he had told Paul and Jeff that he had a criminal record for stealing and false pretences. He then told Arnold that he had two child sex offences in the past. He then told Arnold: "I was living in the area in 03 when Daniel Morcombe went missing and because of my previous sex offences I've been interviewed and I was hounded for ages about that. Um. I can guarantee I had nothing to do with Daniel Morcombe's disappearance, um, one of my alibis or half an hour of my alibi they reckon they've shot to pieces because my drug dealer's now changed her mind that I wasn't at her house and um, I've lost my two eldest kids due to this as well 'cause stuff that was said that I didn't do with my offences that was stuff I wasn't charged with and stuff, um, and I was brought forward to the coroner's inquest in March April this year and um, I thought that was the end of it so I was surprised when Craig said to me that there's a, um, a warrant but a".

[144] Arnold said that he had paid good money to get the information he needed to keep them "safe and clean as a group" because if the heat was on Cowan then the heat was on Paul, the heat was on Jeff and then the heat was on Arnold himself.

[145] Arnold told him that he had got some information that morning that Cowan had done the Daniel Morcombe murder. Arnold said "And like I said it doesn't bother me at all, but what concerns me is that I need to, I can sort this for you … you know, I can sort things out, I can buy alibis, I can get rid of stuff all that kind of things that need to be done I can do … but I need to know what I need to do … do you know what I mean? So if you say to me look I had nothing to do with it that's not what I've, I've been told … um, and that brings me in a real dilemma, in a crossroads because I want to move forward with what we're doing … but until I can sort this out, I can't … because you're too hot."

[146] He was in other words telling Cowan that Cowan could not be part of the criminal gang unless he was honest with Arnold about what he had done so that Arnold could fix it for him.

[147] He told Cowan that he wanted to bring him on board but he had to weigh up the risks to the business. He then read to him from a fabricated email saying: 30

"Shaddo Hunter alias Brett P Cowan has a history of assault against children and is the main suspect in the disappearances of Daniel Morcombe (wds) Queensland, second [sic] December 2003. My source has told me that there's no doubt that he's the person responsible for this event. The witnesses have placed him at the scene ah, with Morcombe just prior to his disappearance and (wds) about a 45 minute window of opportunity where, where Cowan is unaccounted for. He provided a weak alibi two years later in a Family Court matter but there's something about this alibi that's not right and I'll find out a little more shortly and let you know. The Morcombe case is one of the highest profile missing person cases in Queensland history and there's a lot of [media] interest in it. Cowan gave evidence at an inquest under the code name of P 7 and I suggest you Google some of the info that I provided to get more of a feeling for this matter, which I've done. Coroner's inquests are recommencing shortly and Cowan will again be ah in the spotlight. If you can't sort this out (wds) I suggest you drop him like a hot potato."

[148] Arnold asked Cowan what it was that he had to fix. Cowan then admitted that he had done it. He could have continued to deny it but chose to tell Arnold. He wanted to be part of the crime gang.

[149] Cowan then described in detail the abduction and killing of Daniel Morcombe to Arnold. In that account Cowan admitted to enticing Daniel away from the overpass, taking him to a building in an isolated area, taking him inside, indecently dealing with him, killing him after grabbing him around the throat and strangling him with his arm and taking his body to an area of bushland where he left the body. He also stated that he removed Daniel's clothing and told Arnold where he threw the clothing before driving to Drummond's house to purchase cannabis.

[150] Arnold asked him questions about the location of remains and other evidence. As mentioned earlier, Cowan drew a map for Arnold of where he took Daniel Morcombe's body. He said he did stop at his dealer's place and get some drugs so that they were lying when they said he was not there. Arnold said he would think about whether they should approach her and pay her and Cowan replied that she was still into drugs so she might be approachable. Cowan told Arnold that he had no problem cutting all ties with his family even to the point of having a death certificate issued.

[151] After Cowan's confession, Arnold and Cowan moved out onto a balcony area to smoke. Cowan's manner on the DVD recording appears to be very happy with himself and unconcerned about the enormity of the crime to which he had just confessed. He expressed his confidence about not being prosecuted in the following terms, "because I'm the only person that's known about it so I'm confident that they can't pin me for it." He agreed with the proposition put to him in cross-examination that the reason he confessed to Arnold was because he was confident the police could not pin the abduction and killing of Daniel Morcombe on him.

[152] In his evidence-in-chief at the pre-trial hearing Cowan said that he told Arnold that he was involved in relation to the abduction of Daniel Morcombe because of his promises to be able to sort out an alibi, for him to have contact with his children and 31

that he could participate in big jobs that were coming up. He said if the issue of the alibi had not been raised by Arnold, he would not have said what he did about his involvement in the abduction of Daniel Morcombe. He said that was because what the coroner wanted was a good alibi. He was, it seems, prepared to enter into an agreement to give a false or perjured alibi to the coroner. It is difficult to conclude that he genuinely thought that was what the coroner wanted.

[153] His evidence about confessing because he wanted to be able to have contact with his children was contradicted by his statements to Arnold that he had no problem cutting ties with his family even to the extent of having a death certificate issued. It appears that the only reason he confessed was because he wanted to be part of the criminal gang of which he thought Arnold was the "big boss".

[154] The applicant argued that whilst the questioning was by Arnold the inducements and pressure to answer those questions was created by the summons and the questioning at the coronial inquest. The inducement from the inquest was said to be that if the applicant did not come up with a satisfactory explanation, he would be prosecuted. With that as an operative inducement, it was submitted that it mattered not that there may also have been inducements offered by Arnold. Those offered by persons in authority were still operative. There are two obvious problems with this submission. Firstly it does not appear that the questioning of Cowan at the inquest operated as an inducement in the relevant sense. The coroner and those participating in the coronial proceedings were acting lawfully and properly. The questioning did not exceed appropriate boundaries and no threat, let alone an improper threat was made.39 The notice to attend did no more than require Cowan's attendance at the inquest to give truthful evidence. Secondly any inducement made by Arnold was not made by a person in authority.

[155] As had been arranged, Cowan then went out to lunch with Paul. Cowan then told Paul about how he had killed Daniel Morcombe and disposed of his body. He said that there was "no way they can pin it on me." He said he only spent 10 or 15 minutes with Daniel because he panicked. In evidence Mr Cowan at first said he was not sure why he had confessed but then asserted he felt he had to. He at first denied that there had been any indication that anyone else needed to be told before he told Paul. After a number of leading questions he said that Arnold had said that he would have to tell someone above Jeff or above Paul. Even with a number of leading questions he did not assert that he confessed to Paul because of anything Arnold said or did. He did however assert that if it had not been said at the coroner's court that the coroner wanted him to have an alibi so he would not be charged, he would not have made the confession to Arnold or the subsequent confessions.

[156] After that Cowan spoke to Arnold again. Arnold said he had arranged for him to go to Queensland on the following day with Paul and Ian who would clean up the site. Cowan was asked to take them everywhere that he went on the day of the abduction. Cowan told Arnold he would like to stop his ex-wife getting custody of their son.

[157] On 10 August 2011 Cowan flew to Queensland with undercover police officers, Paul #452 and Ian #392. In his evidence he asserted that he only did that because if he did not do it, Arnold, Paul and Ian would not be able to give him an alibi. Over

39 cf Kempley v The King (1994) 18 ALJR 118 at 121-122, cited by Gleeson CJ in Tofilau at [7]. 32

the next few days Cowan directed the undercover police to a specific area in the Glasshouse Mountains and indicated where he left Daniel's body. He also showed the police the small bridge where he said he had thrown Daniel's clothing in to the creek.

[158] On 13 August 2011 Cowan was arrested at the site where he had said he had disposed of Daniel Morcombe's body. He made no admissions and declined an interview. The arresting officer was Stephen Blanchfield, a Detective Senior Sergeant with the Homicide Investigation Unit.

[159] Extensive examination of the area occurred over the next several months. In total 17 human bones were recovered in an area close to where Cowan had indicated he left Daniel's body. As well police found a "Globe" brand sports shoe of a size, model and colour consistent with a shoe box in Daniel's room. When this shoe was examined it was found to have wear patterns consistent with patterns on other shoes known to have been worn by Daniel.

[160] A search of Coochin Creek near the bridge identified by Cowan resulted in the location of a pair of "Ripcurl" shorts and the remnants of a pair of "Bonds" underpants. Both items were consistent with clothing known to be worn by Daniel.

[161] It is the prosecution case that the human bones found at the Glasshouse Mountains site are the remains of Daniel Morcombe. The prosecution will allege that this conclusion is supported by evidence that the bones were all from one person who was a young male; evidence of extraction and analysis of DNA material with results consistent with the remains being those of Daniel Morcombe; and the evidence of clothing described above.

[162] In addition to the scientific examination and analysis of the remains and items found at the scene, expert opinion has been obtained by the prosecution concerning hydrological, geophysical and topological changes to the scene between late 2003 and August 2011 as well as likely animal movement and scavenging. This evidence will be led to explain how the remains came to be distributed as they were found in 2011.

Conclusions re admissibility of confessions

[163] It appears from the discussion above that the prosecution has proved on the balance of probabilities that the confessions by Cowan were made voluntarily and the defence has failed to prove on the balance of probabilities that I should nevertheless exercise my discretion to exclude them on the basis that it would be unfair to the defendant to admit them into evidence. Accordingly, the application to exclude the material should fail.

Admissibility of similar fact evidence

[164] Cowan has previously committed sexual offence against young boys. On 5 December 1987 Cowan was performing community service at a park in Brisbane when he spoke to a seven year old boy. Cowan, who was 18 years old at the time, took the boy by the hand and led him into the toilet block where Cowan inserted a finger into the boy's anus, fondled the boy's penis and performed oral sex upon the boy. When the boy complained he did not want Cowan to continue Cowan said, "Do you want me to hurt you?" and using two hands grabbed the boy around the 33

neck and squeezed, hurting the boy. The complainant boy provided a statement to police on 5 December 1987. He gave evidence at Cowan's trial in September 1988. The complainant described being sodomised but Cowan was acquitted of this charge. Cowan pleaded not guilty but was convicted by a jury and sentenced to two years imprisonment.

[165] The complainant gave a further statement to police on 11 October 2011. Perhaps unsurprisingly, there are some differences in the complainant's description of events in the later statement particularly describing a higher level of violence and threats to kill. This evidence was not corroborated by the medical examination carried out immediately after the offences.

[166] On 23 September 1993 Cowan was living in a caravan park in Darwin. That evening a six year old boy was returning from the toilet block to his caravan wearing only underpants. Cowan spoke to the boy and enticed him to go to look at some wrecked cars near the park. After walking some distance Cowan lifted up and carried the boy to the wrecked cars, tied his arms and feet with rope and stuffed paper in his mouth. Cowan removed the boy's underpants. Cowan masturbated while fondling the boy's leg then inserted a finger into the boy's anus. After a while Cowan had the boy perform fellatio. As the rope tying the boy starting to loosen Cowan took a knife and cut the boy's leg and chest before abandoning the boy at the wrecked cars. There was no description of having been strangled or choked by the applicant. He displayed signs of suffocation but there were no obvious injuries to his neck. In his interview with police on 14 September 2006, Cowan denied beating the boy or trying to strangle him. Cowan's confession came after he was told that the complainant's underpants had been found and were contaminated with semen. Cowan was asked to provide a DNA sample.

[167] The version given by the complainant in a statement dated 1 December 2011 contains much more dramatic and extensive allegations than were made by him at the time and do not appear to conform with the medical evidence on the basis on which Cowan was sentenced.

[168] The defendant in his submissions described this offending as: "a history for, on two occasions, opportunistic sex offending on male children which involved elements of brazenness as they occurred in daylight, were committed upon children he did not know well, and included either taking or enticing the child away from where he first met them for the purposes of the sexual abuse. Both matters had also involved an element of violence or injury."

[169] The prosecution submitted that evidence of this prior conduct is such that when viewed in the context of the prosecution case it can bear no rational explanation consistent with Cowan's innocence.

[170] The defendant submitted that the evidence did not meet the requirements for admissibility under the test formulated in Pfennig v The Queen.40

Pfennig v The Queen

40 (1995) 182 CLR 461 at 481-482. 34

[171] Pfennig was charged with the murder of a 10 year old boy, Michael Black, in 1989. The prosecution‘s case was that the appellant used his white Kombi van to abduct the boy for sexual purposes and kill him. It was argued that the appellant had placed Michael‘s clothes near a river to give the appearance of drowning. The body was never found and drowning was dismissed as an unreasonable explanation for Michael‘s disappearance.41

[172] At trial, the prosecution sought to rely on circumstantial evidence, including the appellant‘s conviction for the abduction and rape of a 13 year old boy, H, in 1990. In that case, the appellant had enticed H into entering his white Kombi van. The appellant left H‘s bicycle at the top of a cliff and took H back to the appellant‘s house where he molested him. The following day, H escaped and the appellant was arrested. The appellant‘s wife gave evidence that the appellant had told her was thinking of ‗it‘ for the past 12 months. The appellant pleaded guilty.

[173] The trial judge admitted the evidence of the later offence and the appellant was convicted. This was an appeal to the High Court following a dismissal by the Criminal Court of Appeal.

[174] The key issue on appeal was whether the evidence relating to H‘s abduction was admissible at trial. Specifically, was the probative value of the evidence sufficient to outweigh its prejudicial effect?42

[175] Finding the evidence of the prior conviction to be admissible, Mason CJ, Deane and Dawson JJ laid down a principle for the admissibility of propensity or similar fact evidence in Australia:43 "the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged. In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged."

[176] Their Honours noted that while ‗striking similarities‘, ‗unusual features‘, ‗underlying unity‘ or a ‗pattern‘ may increase the probative force of such evidence, these characteristics are not essential prerequisites for admissibility in every case.44 Further, where propensity evidence is in dispute, it is still relevant to prove the commission of the acts charged. However, its probative value will be decreased.45

[177] Balancing probative value against prejudicial effect is a delicate exercise.46 The trial judge must recognise that ‗propensity evidence is circumstantial evidence and

41 Pfennig v The Queen (1995) 182 CLR 461 at 471. 42 Makin v Attorney-General (NSW) [1894] AC 57 at 65. 43 Pfennig v The Queen (1995) 182 CLR 461 at 481-482, citing Hoch v The Queen (1988) 165 CLR 292 at 294-295. 44 Pfennig v The Queen (1995) 182 CLR 461 at 482, citing Hoch v The Queen (1988) 165 CLR 292 at 294-295 and Harriman v The Queen (1989) 167 CLR 590 at 600. 45 Pfennig v The Queen (1995) 182 CLR 461 at 482. 46 Pfennig v The Queen (1995) 182 CLR 461 at 485 citing Reg v B (CR) [1990] 1 SCR 717. 35

that, as such, it should not be used to draw an inference adverse to the accused unless it is the only reasonable inference in the circumstances.‘47

[178] Applying the test to the facts, the plurality agreed with the trial judge‘s determination that drowning was not a reasonable possibility for disappearance, and abduction for sexual purposes was the only rational explanation. Consequently, evidence of H‘s abduction was correctly admitted as relevant to identity.48

[179] Finding that the probative force of the evidence outweighed its prejudicial effect, the relevant similarities between the two incidents included: abduction for sexual purposes; use of a van; and leaving a false trail.49

[180] These unifying features were considered in the context of other evidence, namely: the appellant‘s presence at the scene, that the van was travelling at an unsafe speed, and the appellant‘s statement to his wife about thinking of ‗it‘. Considered collectively, there was no reasonable view of the evidence consistent with innocence.50

[181] Consistent with the joint judgment, the separate judgments of Toohey and McHugh JJ also found the evidence to be admissible. Toohey J noted that while such evidence will inevitably have a prejudicial effect, it may nonetheless be ―just‖ to admit it.51 Whether admission is ―just‖ involves consideration of not only the interests of the accused, but also the legitimate interests of the Crown and the community.52

[182] Considering the cumulative effect of circumstantial evidence, McHugh J found that ―ultimately, the propensity and other evidence in this case combine to cut out all hypotheses other than the hypothesis that the appellant abducted and murdered Michael Black.‖53

Application of Pfennig

[183] Subsequent case law has sought to apply the Pfennig test.

[184] In Phillips v The Queen,54 the High Court noted that Pfennig does not require a conclusion that the similar facts alone demonstrate the guilt of the defendant, rather, the judge must exclude the evidence if there is a reasonable view consistent with innocence.

[185] In HML, Gleeson CJ, however, gave a salutary warning as to the caution trial judges should exercise before admitting such evidence and as to the reasons for excluding it, when he observed:55 "Whatever the purpose for which similar fact evidence is adduced, it has an effect which the law regards as capable of providing a good reason for excluding it: if accepted, it shows a disposition or

47 Pfennig v The Queen (1995) 182 CLR 461 at 485. 48 Pfennig v The Queen (1995) 182 CLR 461 at 486-487. 49 Pfennig v The Queen (1995) 182 CLR 461 at 488 and 472. 50 Pfennig v The Queen (1995) 182 CLR 461 at 490. 51 Pfennig v The Queen (1995) 182 CLR 461 at 507. 52 Pfennig v The Queen (1995) 182 CLR 461. 53 Pfennig v The Queen (1995) 182 CLR 461 at 542. 54 (2006) 225 CLR 303 at [63]. 55 HML v The Queen (2008) 235 CLR 334 at [12]. 36

tendency to engage in crime or other discreditable conduct. If that is all it shows, and the prosecution adduces the evidence for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried, then the law excludes such evidence as a matter of fundamental principle.56 The purpose just described is often referred to as propensity, although that itself is ambiguous. The reason for the exclusion is not the irrelevance of propensity, but its prejudicial effect. In this context, prejudice means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate. If it did, probative value would be part of prejudicial effect. It is the risk that evidence of propensity will be taken by a jury to prove too much that the law seeks to guard against."

[186] I turn to consider cases in Queensland which have applied Pfennig. R v Vaughan; ex parte A-G (Qld)57 came before the Court of Appeal on a reference by the Attorney-General in relation to whether, in two pre-trial rulings, the judges applied the correct test to determine the admissibility of propensity evidence. Specifically, there were two pre-trial rulings made by two different judges. Their rulings were inconsistent.

[187] The propensity evidence in dispute was of a prior conviction of Vaughan wherein he had abducted an adult woman and consequently ―pleaded guilty to a charge of having assaulted [the young woman] with intent to rape her, and with having detained her against her will with intent to carnally know her.‖58 In the first judge‘s pre-trial ruling it was held that the propensity evidence was inadmissible if it was solely being led as relevant to the identity of the murderer. Critically, however, the judge held that because it was easily open on the prosecution case that the murderer and the abductor were the same person, the propensity evidence was ―very substantially probative, and admissible on the charge of assault with intent to rape.‖59 The first judge, however, applied the incorrect test regarding the admissibility of propensity evidence by following the approach in R v O’Keefe,60 which, since Phillips, should not have been applied.

[188] The second judge, on the second pre-trial application, granted leave for the ruling to be revisited. By applying the correct Pfennig test, the second judge ruled this evidence inadmissible. This ruling was based upon the finding that the similar fact evidence was ―of a sufficiently commonplace event to deprive it of the necessary probative value.‖61

[189] Relevantly, the court considered the difficulty of extracting the propensity evidence if it was ruled inadmissible. In a somewhat similar fashion to the evidence being led against Cowan, here, the appellant himself had made references to his prior convictions, prison sentence and that he was on parole.62 The appellant submitted

56 Makin v Attorney-General for New South Wales [1894] AC 57 at 65. 57 [2006] QCA 216. 58 R v Vaughan; ex parte A-G (Qld) [2006] QCA 216 at [9]. 59 R v Vaughan; ex parte A-G (Qld) [2006] QCA 216 at [12]. 60 [2000] 1 Qd R 564. 61 R v Vaughan; ex parte A-G (Qld) [2006] QCA 216 at [41]. 62 R v Vaughan; ex parte A-G (Qld) [2006] QCA 216 at [29]. 37

that ―it would be extremely difficult to disentangle those references from the other conversations, and would distort the meaning of what remained. That was because Vaughan put forward his own prior conviction as one specific reason he had attempted to persuade the person he named as the murderer, on earlier occasions, from that person‘s declared threats to ‗root‘, ‗stab‘ and ‗rape‘, when speaking of women in general.‖63

[190] It is of merit to note that unlike in the present application, the similar fact evidence (of SM) was accepted as accurate and if admitted, would be tendered as a statement.

[191] Helman J, with whom de Jersey CJ agreed, referred to Pfennig as the correct test to apply: ―It is a very strict test requiring a trial judge to determine admissibility by applying the same test as a jury must apply in dealing with circumstantial evidence.‖64 The Court affirmed the proposition that ―the question is not merely whether propensity evidence supports an inference that the accused is guilty but rather whether there is a rational view of it that is consistent with the innocence of the accused. If there is such a view then the judge must exclude it.‖65

66 [192] The Court of Appeal allowed an appeal in R v MAP where there had been joinder of multiple offences committed against several complainants in one indictment. The question in issue was whether there should have been separate trials. Importantly, the Court set out that: ―whether the evidence relating to the complaint by Ms S was admissible in the Crown case relating to the complaint by Ms W, and vice versa, is to be determined in accordance with the principles stated by the High Court of Australia in Pfennig v The Queen and Phillips v The Queen.‖67 (citations omitted)

[193] The prejudicial nature of the similar fact evidence was cause for considerable concern for the court. Keane JA cited several English and Australian authorities68 and importantly, his Honour included the explanation in Pfennig: ―the evidence of propensity needs to have a specific connexion with the commission of the offence charged, a connexion which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.‖69

[194] The court allowed the first ground of appeal holding that there had been improper joinder. The evidence was inadmissible because ―it is not possible to sustain the conclusion that there was an underlying pattern to the appellant‘s alleged attack‖ on each complainant.70 The court outlined the similarities between the offences on the indictment: the same location of the alleged offences; the alleged offences occurred in the same room; the complainants were teenage girls who were familiar to the accused; the complainants were asleep when the alleged offences occurred; each

63 R v Vaughan; ex parte A-G (Qld) [2006] QCA 216 at [26] (citations omitted). 64 R v Vaughan; ex parte A-G (Qld) [2006] QCA 216 at [40] citing Pfennig v The Queen (1995) 182 CLR 461 at 482-483 per Mason CJ and Deane and Dawson JJ. 65 R v Vaughan; ex parte A-G (Qld) [2006] QCA 216 at [40]. 66 [2006] QCA 220. 67 R v MAP [2006] QCA 220 at [38]. 68 R v Boardman [1975] AC 421 at 444; Sutton v R (1984) 152 CLR 528 at 533; Harriman v R (1989) 167 CLR 590 at 633; Hoch v R (1988) 165 CLR 292 at 294-5. 69 R v MAP [2006] QCA 220 at [39] citing Pfennig v The Queen (1995) 182 CLR 461 at 485. 70 R v MAP [2006] QCA 220 at [45]. 38

offence involved some preliminary touching of the girl; the offences involved digital penetration only; and the offences occurred while the appellant‘s girlfriend slept nearby in the room.71

[195] Critically, however, the dissimilarities between the alleged offences were sufficient to warrant the severing of the indictment: ―In one case, there was an act of digital rape which involved an invitation to a further sexual encounter by one young person affected by alcohol to another young person who was also so affected. In the other case, there was a sober act of digital rape accompanied by physical threats.‖72

[196] Keane JA, with whom the President and Jones J agreed, held that the evidence in this case relating to one complainant was not admissible against the others. Consequently, the trial judge had erred in allowing the joinder and should have ordered separate trials.

73 [197] R v BBG concerned a pre-trial ruling allowing the joinder of four counts. At the pre-trial hearing there had been no application to sever each count from the others, but to sever the counts that related to the same complainant (counts 1 and 2 from counts 3 and 4). The Court of Appeal upheld the joinder of counts 3 and 4. The issues then became whether counts 2, 3 and 4 were properly joined and whether count 1 was properly joined with the remaining counts.

[198] McMurdo P (with whom I agreed) emphasised ―the exceptional admission of similar fact evidence.‖74 In concluding that there were ―significant similarities‖ between the conduct alleged by both complainants, it was held that ―if A‘s evidence of the commission of counts 3 and 4 was accepted, then there was no reasonable view of that evidence consistent with the appellant‘s innocence on count 2 involving J.‖75 Adopting the Pfennig test, the majority reasoned that ―the many similarities between the accounts of J and A were sufficiently striking to constitute evidence of a common modus operandi.‖76 Accordingly, it was held that the counts were appropriately joined ―because they were in the exceptional category of similar character.‖77

78 [199] The test to be applied was set out as follows: "The issue of joinder of charges because of their similar character has most recently been considered by the High Court in Phillips v The Queen.79 In a joint judgment the court (constituted by Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) noted that the test for the admissibility of similar fact evidence has long been that stated in Pfennig v The Queen:80 similar fact evidence is inadmissible unless, viewed in the context of the prosecution case, there is no reasonable

71 R v MAP [2006] QCA 220 at [40]. 72 R v MAP [2006] QCA 220 at [45]. 73 [2007] QCA 275. 74 R v BBG [2007] QCA 275 at [35]. 75 R v BBG [2007] QCA 275 at [36] citing cf Pfennig (1995) 182 CLR 461 and Phillips v The Queen (2006) 225 CLR 303 at [54]. 76 R v BBG [2007] QCA 275 at [36]. 77 R v BBG [2007] QCA 275 at [37]. 78 R v BBG [2007] QCA 275 at [5]. 79 (2006) 225 CLR 303 at [9]. 80 (1995) 182 CLR 461 at 484. 39

view of it consistent with the innocence of the accused.81 In overruling this Court's approach in R v O'Keefe82 their Honours adverted to the following passage in Pfennig: ‗[S]triking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence, though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics.‘

Despite that passage, the court emphasised: ‘… [A] fundamental aspect of the requirements for admissibility: [is] the need for similar fact evidence to possess some particular probative quality. The 'admission of similar fact evidence … is exceptional and requires a strong degree of probative force.' It must have a 'really material bearing on the issues to be decided'. It is only admissible where its probative force 'clearly transcends its merely prejudicial effect'. ‗[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind'. The criterion of admissibility for similar fact evidence is 'the strength of its probative force'. It is necessary to find a 'sufficient nexus' between the primary evidence on a particular charge and the similar fact evidence. The probative force must be 'sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused.' Admissible similar fact evidence must have 'some specific connection with or relation to the issues for decision in the subject case'. As explained in Pfennig v The Queen: 'the evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.' (footnotes omitted)83

Later, the court added: ‗What is said in Pfennig v The Queen about the task of a judge deciding the admissibility of similar fact evidence, and for that purpose comparing the probative effect of the evidence with its prejudicial effect, must be understood in the light of two further considerations. First, due weight must be given to the necessity to view the similar fact evidence in the context of the prosecution case. Secondly, it must be recognised that, as a test of admissibility of evidence, the test is to be applied by the judge on certain assumptions. Thus it must be assumed that the similar fact evidence would be accepted as true

81 Phillips v The Queen (2006) 225 CLR 303 at [9]. 82 [2000] 1 Qd R 564. 83 Phillips v The Queen (2006) 225 CLR 303 at [54]. 40

and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury. Pfennig v The Queen does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged. But it does require the judge to exclude the evidence if, viewed in the context and way just described, there is a reasonable view of the similar fact evidence which is consistent with innocence.‘ (footnotes omitted)"84

[200] Holmes JA dissented in part and concluded that count 2 was improperly joined with counts 3 and 4. Her Honour reasoned that the appellant‘s ―pre-assault pattern‖ of behaviour with the two complainants differed such that ―these two sets of events do not manifest a marked similarity or a distinctive modus operandi so as to give the evidence relating to one a real probative effect in respect of the other.‖85

86 [201] In R v CAH, the question in issue concerned whether evidence of uncharged acts could be admitted. Consistently with the High Court‘s decision in HML v The Queen,87 McMurdo P, with whom Mackenzie AJA and Dutney J agreed, found that while the trial judge correctly admitted evidence of uncharged acts of sexual activity between the complainant and the appellant, the judge had failed to direct the jury appropriately on its careful use of the evidence.

[202] Importantly, the President outlined that ―evidence of sexual acts between a complainant and an accused person not the subject of the current charges is admissible to show that the complainant‘s evidence on the current charges is not inherently improbable because of the nature of the relationship between the complainant and the appellant providing it satisfies the test in Pfennig v The Queen.‖88 The appellant and the complainant were known to each other: the appellant was the complainant‘s stepfather. Her Honour went on to reiterate the accurate application of Pfennig: ―the test is whether there is no reasonable view of that evidence consistent with the accused person‘s innocence.‖89

[203] The President cited in full the trial judge‘s ―contentious‖ directions about the evidence of the appellant‘s sexual misconduct toward the complainant which was not before the court in the present instance.90 However the relevance of her Honour‘s finding that the judge erred in these directions is limited because the directions were given before HML. Indeed, HML is authority for the fact that ―before acting on it, [the jury] must be satisfied beyond reasonable doubt that the alleged sexual conduct between the appellant and the complainant in Victoria and Queensland which were not the subject of the present charges occurred.‖91

84 Phillips v The Queen (2006) 225 CLR 303 at [63]. 85 R v BBG [2007] QCA 275 at [48]. 86 (2008) 186 A Crim R 288. 87 (2008) 235 CLR 334. 88 R v BBG [2007] QCA 275 at [12]. 89 R v BBG [2007] QCA 275 at [12]. 90 R v BBG [2007] QCA 275 at [15]-[16]. 91 R v BBG [2007] QCA 275 at [21] citing HML v The Queen (2008) 235 CLR 334 at [196], [41], [61], [506]. 41

92 [204] In R v O’Neill, the Court of Appeal allowed an appeal against conviction where similar fact evidence about a previous conviction for the production of dangerous drugs had been deemed admissible at the pre-trial hearing and by the trial judge. At trial, the appellant was found not guilty of count 1, producing a dangerous drug, methylamphetamine, but guilty of the alternate count 2, permitting a place to be used for the commission of the crime of producing dangerous drugs. The court held that the jury should have been directed as to the precise use of the similar fact evidence. That is, when the evidence was given and in the judge‘s summing up, the jury should have been directed that the evidence of the appellant‘s 2003 production conviction was only relevant to count 1.

[205] The court held that during the pre-trial hearing, Daubney J (who was not the trial judge) applied the Pfennig test correctly in allowing the similar fact evidence to be led as relevant to count 1: "Daubney J determined that the similar fact evidence of the 2003 events proposed to be led by the prosecution as proof of the present offences, if accepted by the jury as true, would be probative of proof of O‘Neill‘s knowledge of the production of methylamphetamine. An inference could be drawn from this to connect O‘Neill with the objects found in the shed in the 2008 police search. Adopting the approach taken by the High Court in Pfennig v The Queen; HML v The Queen and Phillips v The Queen Daubney J concluded that there was no reasonable view of the similar fact evidence of the 2003 events consistent with O‘Neill‘s innocence on the 2008 offences."93 (references omitted)

[206] The similar fact evidence led by the prosecution related to offending which had occurred five years prior to the present offending. Drawing on the reasons outlined by the trial judge, it can be seen that the ―striking similarities‖ between the 2003 production and the prosecution‘s case at trial included: the address of the offences was the same; the drug was the same; and by O‘Neill‘s plea of guilty to the 2003 production charge, it was clear he had the requisite knowledge to produce methlylamphetamine.

[207] However, the court highlighted that the differences between count 1 and the much lesser alternative count amounted to a critical distinction regarding the admissibility of the similar fact evidence. The court stressed the error in allowing the evidence in without qualification: ―unfortunately, neither Daubney J, the trial judge, nor trial counsel turned their minds to whether the evidence of the 2003 events amounted to similar fact evidence on count 2. It did not.‖94

[208] Because the appellant was acquitted of the production charge, the President, with whom Muir and Fraser JJA agreed, warned of the possibility that the jury embarked upon a gap-filling exercise wherein they may have ―improperly used‖ the inadmissible similar fact evidence to strengthen ―the prosecution‘s circumstantial case on count 2.‖95 The court reasoned that ―admission of evidence of this kind is exceptional in our criminal justice system. When it is admitted, great care must be taken by counsel, and particularly by the trial judge, to ensure the jury understands

92 [2010] QCA 111. 93 R v O’Neill [2010] QCA 111 at [6]. 94 R v O’Neill [2010] QCA 111 at [37]. 95 R v O’Neill [2010] QCA 111 at [41]. 42

the proper limits of its use.‖96 Ultimately, the Court of Appeal allowed the appeal holding that ―the unsatisfactory jury directions on count 2 may well have caused a substantial miscarriage of justice.‖97

98 [209] In R v Brown, Muir JA, with McMurdo P and Chesterman JA concurring, held that similar fact evidence of the appellant‘s prior conviction for common assault had been erroneously admitted by the trial judge. The appellant unsuccessfully argued that ―there was no ‗striking similarity‘ between the similar fact evidence and the circumstances of the subject offence [wherein a 61 year old complainant was attacked by an intruder in a home invasion] and, further, that the similar fact evidence had insufficient probative force to transcend its prejudicial effect.‖99

[210] The Court of Appeal noted that it could be established that there were ―striking similarities‖ between the prior offence and the instant case as both involved attacks which were ―sexually motivated.‖100 The Court went on to say, however, that ―of course, the existence of ‗striking similarities‘, ‗unusual features‘ or an ‗underlying unity‘, ‗system‘ or ‗pattern‘ is not an essential pre-requisite to the admissibility of such similar fact evidence.‖101 Importantly, the court qualified this in its application of Pfennig: ―But evidence of the type under consideration is admissible only if there is no reasonable view of such evidence, considered together with the other relevant evidence in the case which is consistent with the innocence of the accused.‖102

103 [211] R v Gregory concerned the admissibility of similar fact evidence of prior convictions for sexual offences. The offending conduct which constituted the similar fact evidence (―the 1993 offences‖) was the appellant‘s plea of guilty to three counts of sexual offences against an 11 year old boy. The evidence was ruled admissible in the pre-trial hearing on the basis that, by applying Pfennig and Phillips, there was "no reasonable view of the similar fact evidence consistent with the innocence of the accused."104 The Court of Appeal upheld this ruling and ultimately dismissed the appeal.

[212] Muir JA, with White JA and Martin J concurring, held: "the evidence of the 1993 offences did rather more than merely establish the appellant‘s general propensity for sexual offending against boys. The connection between the evidence in respect of the 1993 offences and the other evidence relied on by the prosecution in this case is sufficient to warrant the admission of the former."105

[213] Significantly, Muir JA outlined that ―there were aspects of both sets of offences which revealed a ‗striking similarity‘ or a ‗pattern‘ or an ‗unusual feature.‘‖106 His Honour identified these aspects:

96 R v O’Neill [2010] QCA 111 at [37]. 97 R v O’Neill [2010] QCA 111 at [41]. 98 [2011] QCA 16. 99 R v Brown [2011] QCA 16 at [14] citing Phillips v The Queen (2006) 225 CLR 303 at [54]. 100 R v Brown [2011] QCA 16 at [16]. 101 R v Brown [2011] QCA 16 at [18] citing Pfennig at [482]. 102 R v Brown [2011] QCA 16 at [18] citing Pfennig at [481] and HML v The Queen (2008) 235 CLR 334 at [21] and [118]. 103 [2011] QCA 86. 104 R v Gregory [2011] QCA 86 at [17]. 105 R v Gregory [2011] QCA 86 at [27]. 106 R v Gregory [2011] QCA 86 at [24]. 43

 ―The mature aged appellant struck up a friendship with a male child in such a way that the appellant engineered that the child soon shared his bed in the evening;‖  ―Massage was used by the appellant as a pretext… in the 1993 offences, for sexual handling‖ and ―in this case…as a part of sexual grooming;‖  The appellant and the child victim did not have extensive prior social contact; and  ―The speed with which the appellant fulfilled his sexual aims.‖107

108 [214] Accordingly, the Court of Appeal, citing HML v The Queen, held that the ―evidence in respect of the 1993 offences had ‗a really material bearing on the issues to be decided,‖ and supported an inference that the appellant was ―guilty of the offence charged, and [was] open to no other, innocent, explanation.‖109

The prosecution submissions

[215] The prosecution submitted that the similar fact evidence in this case was to be tendered to prove the identity of the offender, as the prosecution case was that the person who abducted Daniel Morcombe was responsible for his death.

[216] The prosecution submitted that the high probative value of this evidence lay in the assistance it provided to the assessment of the probability that someone other than Cowan was responsible for abducting Daniel Morcombe. The prosecution submitted that the evidence was capable of establishing a propensity of the applicant to entice away young boys for sexual purposes and to resort to threats and violence to achieve his desires and to ensure his crimes were not revealed. It was submitted that the similar fact evidence was such that, when viewed in the context of the prosecution case, it bore no rational explanation consistent with the suggestion that it was someone other than Cowan who abducted Daniel Morcombe.

[217] The prosecution further submitted that once admitted as to the issue of identity, the similar fact evidence would be admissible to rebut presumed lines of defence that could operate during the trial.

[218] It was submitted that the evidence is relevant and carries no prejudicial effect in excess of its legitimate inculpatory force.

Consideration

[219] The defence submitted that notwithstanding any probative value the similar fact evidence could have, it concerns events that happened a very long time ago and the recollection of each of the complainants has changed. Taken at their highest, the versions given in their 2011 statements involve much more violence than they had alleged previously. In neither case are their assertions borne out by the medical evidence. The defence also pointed to the fact that there were a number of other persons with a history of child sex offending who could have been in the relevant area at the relevant time. One of them other than Cowan had a history of violent abduction and sexual offending against children.

107 R v Gregory [2011] QCA 86 at [24] – [26]. 108 (2008) 235 CLR 334 at [108]. 109 R v Gregory [2011] QCA 86 at [27]. 44

[220] I agree that the differences in recollection between the facts on which the defendant was convicted and the facts now sought to be relied upon by the prosecution attenuates the probative force of the evidence and its reliability and focuses on the difficulties faced by the defence in dealing with it. Even if the defence were successful in attacking the credibility of the complainants as to their latest statements, the defence can only do so by emphasising the facts on which the defendant was convicted. The conviction of the defendant for sexual offences against two much younger children without more is of course extremely prejudicial and may give rise to impermissible propensity reasoning.

[221] Returning to the test from Pfennig itself the question is does the opportunistic sexual offending by Cowan against two much younger boys bear no reasonable explanation other than inculpation of him in the abduction and murder of Daniel Morcombe. There are undoubtedly similarities in the offending as accepted by the defence in the submission referred to in [168] of these reasons. However, given the difference in the ages of the complainants and the use of a motor vehicle in the Morcombe case, in my view the evidence is not so strikingly similar that there is no reasonable view of the evidence of his offending against two younger boys other than as supporting an inference that he is the one who abducted and then killed Daniel Morcombe.

[222] The question of admissibility is finely balanced but in view of the extremely prejudicial nature of admitting the two earlier convictions which would be likely to be taken by the jury ―to prove too much‖110 in my view the evidence as to the offences against A and B should be excluded.

Conclusion

[223] The defendant's application to exclude the evidence of admissions made by him by words or deeds to police should be refused and the application to exclude evidence of the defendant's prior sexual misconduct with A and B should be allowed.

110 HML v The Queen (2008) 235 CLR 334 at [12].

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