[2013] QSC 337 PARTIES: R V COWAN, Brett Peter (Applicant)

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.

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