Brett Cowan, the man convicted of the murder of Daniel Morcombe, Loses Appeal – Criminal Case

Previously, we published an article about the appeal by Brett Cowan, the man convicted of the murder of Daniel Morcombe. In that article we explained the reasons relied on by Cowan for the appeal and also why the Crown also appealed, even though Cowan was convicted. Inevitably, the ‘Queensland Court of Appeal’ handed down its decision, dismissing the appeal by Cowan and also dismissing the appeal by the Crown.

What is the ‘Queensland Court of Appeal’?

The ‘Queensland Court of Appeal’ is the highest court in the Queensland legal system. It hears appeals from the District and Supreme Courts and will consist of a panel of three Supreme Court judges. If a person loses at a trial, or is sentenced to a term that the person believes is too harsh (in the District or Supreme Courts), then they can appeal in the Court of Appeal. The Crown can ordinarily only appeal if they believe that the sentence was too lenient; meaning that they ordinarily can’t appeal if a person is found not guilty at a trial.

What did the judges decide?

To recap, Cowan argued three main points: that the jury should never have heard Cowan’s recorded confessions to the police because they were unfairly obtained; that the trial judge unfairly summarised the defence case suggesting that another person (Douglas Jackway) could have committed the murder, rather than Cowan; and that the judge was wrong not to accept applications for mis-trials following a prejudicial note left at the crime scene and newspaper headline suggesting that Cowan was guilty.

Firstly, as to the ground that Cowan should have been given a mis-trial ruling (meaning that the trial should have started again before a new jury), this argument was abandoned during the appeal hearing. This usually means that Cowan accepted that the argument was too weak to continue with and focus should instead be given to the other arguments.

As to the recorded confessions being unfairly obtained, Cowan argued that because the police officers pretended to be criminals (in order to get him to confess) he was effectively induced into making the admissions because he had something to gain. That being acceptance into their criminal gang. 

However, the judges found that the undercover police officers were not relying on the State’s coercive power and were not and could not have been perceived by Cowan to have the lawful authority and acting on behalf of the Police. This is because, as far as Cowan was aware, the police officers were corrupt and in fact criminals and acting in that capacity.

Finally, as to the trial judge’s unfair summing up of the defence case regarding Jackway, the Court of Appeal found that the trial judge’s summing up had in fact been fair. Cowan argued that there was ample evidence to suggest that Jackway had committed the crimes and that the jury could not be absolutely certain that Jackway had not in fact committed the crimes. The Court of Appeal said that there was simply no direct evidence that Jackway did, or could have, committed the crimes.

What can happen now?

As Cowan lost his appeal before the Court of Appeal, there is one option left for him — an appeal to the High Court of Australia. In order to even be heard in the High Court, a person must be granted ‘special leave’; meaning that they need to convince the court that their case involves a new or untested area of law. Only if the High Court accepts that it is new or untested can the person proceed with their appeal.

If you’re needing assistance with matters concerning assault and offences of violence, Cridland & Hua are the specialists amongst Brisbane Law Firms, practising exclusively in criminal and quasi-criminal law. Contact us today. 




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