Queensland murderer Brett Cowan is appealing his conviction for the murder of Sunshine Coast schoolboy Daniel Morcombe, on the basis that his videotaped confession to an undercover police officer infringed his right to remain silent.

The argument his counsel intends to raise is that his confession was involuntary, and Cowan was tricked into confessing. The elaborate covert police operation involved undercover officers acting as members of a criminal gang, membership of which required Cowan to disclose his prior criminal activity.

If Cowan’s lawyers succeed in their argument that the confession evidence was improperly obtained and should never have been put before the jury, it is possible that the evidence of the finding of Morcombe’s body should also be excluded, and Cowan acquitted.

The position in NSW

Section 90 of the Evidence Act 1995 (NSW) gives the court discretion to exclude evidence that was illegally or improperly obtained by police. Importantly, this discretion means that even if the court is satisfied that evidence was improperly or illegally obtained, it is not the case that the court must exclude the evidence.

Improperly obtained?

The High Court provided guidance on this issue in the Victorian context in Tofilau v The Queen (2007) 231 CLR 396. In that case, the majority held that confessions made by the defendants to undercover police officers whom the defendants were tricked into believing were criminal gangsters were admissible. The argument that they had been denied the opportunity to choose to refuse to answer questions was rejected.

There is a basal principle that to be admissible a confession must be voluntary (McDermott v The King (1948) 76 CLR 501, 512), however, it was held in Tofilau that this principle refers to factors external to the person questioned causing the will of that person to be overborne — duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, not on the deception by the police officers that they were criminal gangsters.


Cowan’s team definitely have a valid legal argument for setting aside his conviction, however it will depend on a discretionary weighing up by the appeal judges of the fairness of the circumstances in which his confession was obtained, and whether his will to remain silent was improperly overcome. Considering the success this particular type of covert operation has had in obtaining confessions, a decision that the evidence should have been disallowed will affect a lot of cases.

Read more: http://www.sbs.com.au/news/article/2014/03/10/morcombe-jury-told-focus-confession

Image credit: ABC News

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