Brett Peter Cowan Conviction & Appeal – Criminal Lawyers Case Files

In March 2014 Brett Peter Cowan was sentenced to life imprisonment with a non-parole period of 20 years for the murder of Daniel Morcombe. This article will discuss what Cowan’s sentence actually means, why the Crown is also appealing (if they have already secured a conviction), and how Cowan can appeal his conviction given the extremely strong evidence against him.

What does ‘life imprisonment with a non-parole period of 20 years’ mean?

In Queensland, the maximum penalty for criminal offences such as murder (covered under the area of law known as ‘assaults and offences of violence’) and drug trafficking is ‘life imprisonment’. ‘Life imprisonment’ means that a person will either be in jail or supervised in the community until the day they die. 

In the case of drug trafficking, just because a person is convicted of drug offences does not necessarily mean that they will be sentenced to life imprisonment. Very often they will be sentenced to terms of imprisonment between five and 12 years and there are many factors that the Court is able to take into account, such as the period of the offending, the reason behind the offending, the amount that the offender profited by trafficking and the quantity of drugs trafficked.

However, in the case of murder, a sentence of life imprisonment is mandatory, meaning that the Court has no power to impose any other sentence. A life sentence ordinarily involves two components: a non-parole period, meaning the period that a person must actually serve in jail, and a parole period, meaning the period that a person must remain supervised in the community after they have served their non-parole period.  

When a person is sentenced to any term of imprisonment, including life imprisonment, the Court must fix a date that they can apply for parole. Unless the murder is particularly brutal or violent, 15 years is the usual non-parole period, meaning that the person must serve 15 years before they can apply for release on parole. If the person is sentenced to multiple counts of murder then the average is an additional 5 years for each additional murder.  

As criminal defence lawyers in Brisbane, Cridland Hua represented a man in Rockhampton many years ago who was convicted of double murder and he was sentenced to 23 years non-parole. The longest non-parole period ever imposed in Queensland was the triple murderer Max Sica, who was sentenced to 35 years non-parole.

Cowan was sentenced to 20 years non-parole, meaning that he must serve 20 years in jail before he can apply for parole. Even once he applies, there is no guarantee that he will ever be released. This means, in theory, he could remain in jail until he dies.

Why is the Crown appealing even though Cowan has already been found guilty?

The Crown is appealing because they argue that the 20 years non-parole is not sufficient and that Cowan should have a longer period in jail before being able to apply for parole. However, during the sentencing the judge placed very strong words on the record warning any future parole boards to carefully consider ever releasing Cowan: 

“Whenever anyone is considering the prospect of granting you parole, many years in the future, they should mark my words: that you are a convincing, plausible and adaptable liar, and are prepared to lie to advance your own interests”.

Given these words, and given Cowan’s extremely violent and dangerous past, the likely scenario is that he will never be granted parole and will die in jail. 

How is it that Cowan can appeal his murder conviction, given the extremely strong evidence against him?

Following a conviction, a defendant can appeal against the conviction ordinarily on two grounds; firstly, that the jury were unreasonable in their finding of guilt or secondly that the trial was not conducted fairly. Cowan has relied on the second of these in his appeal. He mainly argued that the judge should have excluded certain evidence being placed before the jury and that the judge should have declared a ‘mistrial’ (due to things which arose during the trial which meant that Cowan could not have a fair trial).

One of the main pieces of evidence used against Cowan during his trial were recordings of his confessions to committing the offences. His argument is that they were not true confessions, given that they were made to undercover police officers (that he believed to be corrupt police officers part of a criminal gang) and that therefore they should have been excluded. However, this argument was unsuccessfully made in another case in 2007 in the High Court in Canberra, the highest court in Australia, and I don’t believe this argument could succeed for Cowan.

During the trial, Cowan made two applications for a mistrial. The first failed mistrial application was made after The Courier-Mail published a photograph of Cowan on its front page on 21 February above the headline “Daniel’s killer”, which his lawyers said would cause an unfair trial.  The second application was made after a man left a note for the jury at Daniel’s memorial saying no one could rest until “he” was convicted. Cowan is arguing that once these things had occurred he couldn’t receive a fair trial and that the trial should start again with new jurors.

The appeal is likely to be heard later this year.  If Cowan is successful, it would mean that he would be given a chance to run the trial again. If he is unsuccessful, he still has the option of appealing to the High Court in Canberra.

Perhaps you have been searching on Google for “criminal lawyer near me” but are worried about getting the right information? In looking for a “drug lawyer”, we might assume you are needing representation for an upcoming trial, but you don’t know where to start? If you’re needing assistance with matters concerning assault and offences of violence or drug related offences, Cridland & Hua are the specialists amongst Brisbane Law Firms, practising exclusively in criminal and quasi-criminal law. Contact us today.

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