Attorney General argues 20 yrs non-parole not enough
QUEENSLAND's Attorney-General has argued the "evil and monstrous" murder of Daniel Morcombe warrants a non-parole period longer than 20 years.
Convicted murderer Brett Peter Cowan is serving life imprisonment after a jury in March found him guilty of abducting the Sunshine Coast teen and then killing him while indecently dealing with him in 2003.
But Director of Public Prosecutions Tony Moynihan, acting for the Attorney-General, said lifting the non-parole period from 15 to 20 years was "manifestly inadequate in the sense that it is plainly unreasonable".
He told the Queensland Court of Appeal how the Morcombe case should not be compared to other cases.
"The offending alone in this case justifies the increase," he said.
"He killed a child, which is a matter society rightly regards with particular abhorrence.
"He intentionally killed the children to avoid detection.
"He abducted a child waiting for public transport, and whether it be for the child to go to school or to go to the shops, that attacks at the heart of our way of life.
"The evil and monstrous nature of the killing needs to be deterred and denounced."
Mr Moynihan said Cowan did not help in the administration of justice and rehabilitation attempts had failed. He said Cowan showed a complete lack of remorse or insight into his offending.
But Mr Moynihan said it was the appellant's history of violent sexual offending that added weight to his argument.
He said the history required a substantial but proportionate increase to protect the community.
Mr Moynihan said Cowan would take an opportunity presented to him which was not a mitigating factor, rather demonstrating how dangerous he was.
"(Cowan) is a serial violent sex offender," he said.
"The violence is escalating, that's if one accepts he didn't leave the boy in the Northern Territory for dead. "Listening to or reading the transcripts of his conversations with the undercover police officers is chilling.
"Emphasising all of those matters, an increase of 5 years is manifestly inadequate to properly protect the community from the clear, real and continuing danger this person presents".
Barrister Angus Edwards, acting for Cowan, said the sentencing judge had considered all the appropriate features. He said there had never been a single murder case where the sentence had been increased more than five years, noting even multiple murder cases had not been elevated more than five years above the mandatory minimum.
Appeal court president Margaret McMurdo noted Cowan had a life sentence, that even if released he would still be subject to parole.
That was if the parole board did release him which, she said, must be balanced against "fairly strong comments" from the sentencing judge about the caution that would need to be exercised.
Justice Rosslyn Atkinson said the minimum time for Cowan's release was 20 years but it was up to parole authorities to determine his release, based on her comments.
"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 liar … and prepared to lie to advance your own interests," she said.
Mr Moynihan agreed the parole board had a role to play but "the role the court has to play was not adequately done with an increase of only five years".
Prosecuter says Cowan thought alibi was 'airtight
THE Director of Public Prosecutions has argued Brett Peter Cowan believed his alibi was "100% airtight" and therefore he did not feel a threat or inducement from the coroner to confess to murdering Daniel Morcombe.
Tony Moynihan, acting for the Crown, said the coroner's actions were proper and Cowan, through his own admissions, was not concerned about getting caught because his silence had been his safety net all along.
"The coroner was lawfully and independently conducting an investigation," he said.
"The appellant was called as a witness in that investigation before that operation commenced.
"The actual initial probe didn't start until he had been excused as a witness and was on the plane (back to WA when the cover police operation began).
"The appellant contends the inducement rule is engaged and satisfied because things said while he gave evidence were threat or promise that induced the confession to Arnold."
But Mr Moynihan said Cowan accepted he knew the coroner did not have absolute power to charge him, that the coroner must recommend charges and refer to the DPP.
He said suggestions Cowan made that the coroner threatened to lock him up if he could not tighten his alibi were not true.
"The judge was correct to ultimately find the coroner … acted lawfully, properly, within proper boundaries and no threat was made," he said.
"The questions did not operate to induce a confession to Arnold because the claim is … the appellant said knowing of the order reminded him that he was told at the inquest if he did not come up with an airtight alibi he would be arrested, put in jail or prosecuted.
"That was not said.
"It was contrary to what he said to undercover police from august 4 onwards."
Mr Moynihan said the final week of the three-month covert operation the snared Cowan for Daniel's murder revealed a lot about Cowan's frame of mind.
"Between August 4-9 when talking to Paul, Geoff or Craig, the tenor of these conversations is that he wanted to be in the gang, he thought he would be part of the big job," he said.
"He expressly said he was not concerned about being recalled.
"His alibi was 100% to use his words.
"He had not been happy like this before.
"But the recall was the only thing stopping him from becoming part of the gang.
"The worst thing that could happen was that they stop calling him, that he would be excluded.
"He could see his dream coming to an end. "His solution, at this time, was like (another fake member of the elaborate crime gang) to cut all ties, disappear overseas and be declared dead. "On August 9 when talking to Arnold … Arnold told him he wanted him to be on board but he had to assess risk to the business.
"What he's concerned with is Arnold believed he did it and he was told he should drop him like a hot potato.
"That phrase resonated with (Cowan).
"He knew Arnold wanted to assess the risk so he admitted he did it but he assured Arnold there was no proof.
"He was confident and he continually reassure they could not prove it, that there was no risk. "He never asked for an alibi."
Mr Moynihan said Cowan told undercover officer Paul: "They can't pin it on me because of three reasons - no one knows, they got nothing out of vehicle and he didn't given an alibi till 2005".
"He wasn't concerned about the missing time because he was making the point to Paul that he did it very quickly," Mr Moynihan said.
"His safety net remained always that no one else knew.
"They can't prove anything.
"The only way he could see anything being fixed was for him to go overseas and come back with new identity, he didn't ask for an alibi.
"He said he confessed to Arnold because he offered him an alibi, contact with his children and to be in the in the gang in that order of priorities.
"Nothing by the coroner induced him to speak.
"There was no impropriety in what the coroner did."
EARLIER: Cowan was "tricked" into confession
ONE of Queensland's top lawyers has argued Daniel Morcombe's convic
ted murderer only confessed to the crime to strengthen his alibi because he felt under threat from the authorities.
Barrister Peter Davis told the Queensland Court of Appeal police circumvented Brett Peter Cowan's right to silence despite knowing he had no intention of confessing his involvement in the Sunshine Coast teen's abduction and murder.
He said the "involuntary" confession video, where Cowan admitted his role to covert police officers in an elaborate sting, should never have been before the jury in his trial in March this year.
"What this case is about ... is whether what they did was lawful (improper) and whether what they did undermined Mr Cowan's right to silence," he said.
"Here there is, and if we don't make this out we'll probably lose, there's a very clear indication of Mr Cowan's desire and intention not to implicate himself from his own mouth."
Chief Justice Tim Carmody questioned whether Cowan expressly denying he would ever confess, even if he was involved, made it more appropriate that they engaged in unconventional methods.
"Your Honour is going very close to saying, with the greatest respect, if someone doesn't cooperate with the police then all bets are off and they can do whatever they like," Mr Davis responded.
"No I'm not," Mr Carmody replied.
Mr Davis pointed to another case which he said "puts paid the suggestion that just because someone speak to police it's open slather".
Cowan had multiple police interviews and testified at a coroner's inquest into Daniel's disappearance before police cooked up a sophisticated crime gang, and a $100,000 job, to lure Cowan to confess.
"It was squarely put to him that he would not confess to it and he said 'that's right'," Mr Davis said.
"It's a question of unfairness. It was a breach of his right not to incriminate himself.
"They tricked him into doing it.
"Even though everybody knew he wasn't going to confess to it and he wasn't going to make an admission ... they then circumvent his right (throught) the undercover operatives."
Mr Davis asked the court to consider whether threats from the coroner induced Cowan to confess to the murder.
He said Cowan was terrorised during the cross-examination and the threat, which undercover police used to illicit admissions, of returning for more led to his false confession.
Mr Davis said counsel assisting the coroner suggested Cowan, who had a history of other offences against young boys, was a snake who would not slide past an "injured mouse".
"You've clearly done it, you're a dreadful person, we don't believe you, no one would believe you. You've got to account for this time or we're sending it to the DPP. That is the effect of what is said," Mr Davis said of the submissions at inquest.
Mr Davis said undercover police promised they could sort out an alibi because they were powerful criminals who could pay people off.
"It was all very convincing and in our submission it was all designed to have him fearful about going back to the inquest without a proper alibi," he said.
"What we submit is that in a number of ways he makes it abundantly obvious that he does not intend to confess to killing Daniel.
"He refused to make admissions to undercover police until it was eventually extracted from him."
Mr Davis told the court if it excluded the confession, it must acquit Cowan on murder, indecent dealing and interfering with a corpse.
But he said if he was only successful on the second ground, that the trial justice misdirected the jury over evidence from fellow child sex offender and early person of interest in the case Douglas Jackway, then the court must order a retrial.
Director of Public Prosecutions Tony Moynihan will make his counter arguments and an appeal to increase the non-parole period beyond 20 years today.