The highly publicised trial of child sex offender Brett Peter Cowan for the murder of 13-year-old Daniel Morcombe has cast a spotlight on a number of different legal issues, including the reliability of confessions.
Cowan was earlier this month convicted and sentenced to life in prison with a non-parole period of 20 years for the murder of the Queensland teenager in 2003.
His confession to the crime was elicited through an undercover police investigation.
Brief background of the case
Daniel Morcombe was reported missing on December 7, 2003, having not returned home from a shopping trip.
He was last seen waiting at a bus stop at Woombye on the Sunshine Coast for a bus to take him to the shopping centre.
His disappearance from that bus stop sparked one of the biggest and longest-running criminal investigations in Queensland history.
Cowan was identified as a suspect and appeared at an inquest into the schoolboy’s disappearance in 2011.
After the inquest, police used a covert operation to eventually get him to confess to the crime.
In the absence of forensic evidence, the confession was key to the case.
The operation involved creating a fictitious crime group comprised of undercover police officers, and luring Cowan into the confidence of this group.
This technique is relatively new in Australia. Most covert police operations involve identifying a criminal enterprise first, and then inserting an undercover police operative into it.
The undercover operation in this case essentially did the reverse. Police created the criminal group and inserted the target into it.
The group members formed social bonds with Cowan, and gained his confidence by including him in the criminal enterprise.
The aim of the operation was for Cowan to feel secure and comfortable enough to incriminate himself by talking about Daniel.
This is exactly what occurred. Cowan did confess to members of the group about the murder of Daniel Morcombe, a confession which led to his arrest.
What the law says about confessions
A confession is essentially a statement against an alleged offender’s own interests relating to the offence.
The classic confession is “I did it” or “I buried the body at…..”.
Queensland and NSW (as well as the other states, territories and the Commonwealth) have similar laws regarding the admissibility of confessions.
First, the law (under Section 85 of the Evidence Act 1995 in NSW) states that if a confession is made by a defendant to an investigating official, such as an undercover police officer, during the course of an investigation, that confession is not admissible in court unless the prosecution can show the circumstances in which it was confessed make it unlikely that the truth of the confession was adversely affected.
Secondly, a court can refuse to admit a confession if the circumstances in which the confession was made suggest it would be unfair to the defendant to admit it (section 90 of the Evidence Act in NSW).
The court can look into matters such as any mental or physical disability of the defendant, or their age or personality.
The court can also consider the way in which the confession was elicited (if there was any threat or inducement).
Essentially, the prosecution must demonstrate the confession is reliable where its truth may be in doubt because of the circumstances in which it was made.
As in Cowan’s case, if a defendant confesses to where a murdered victim’s body is, and it is in fact found there, this largely helps the prosecution show that the confession was reliable.
Concerns about covert operations and coercion
The methodology of using covert operations has had its critics. In a Canadian case, a man admitted to the murder of two 14-year-old girls to undercover police officers in a covert operation after being told that if he didn’t, he stood to lose $80,000 for a “big job” by the fictitious crime boss.
Under the law in NSW and other states, there would be doubt on the reliability of that confession, and the court may also consider it would be unfair to the defendant to admit it.
In this case, not only did Cowan make a confession as to the murder, he also led the covert operatives to the site of Daniel’s remains.
The latter action of knowing the crime scene added to the reliability of his confession that he murdered Daniel, despite the defence arguing to the contrary.
Together, the confessions were considered reliable enough to be admitted to court even though they were confessed as a result of a covert operation.
The court would have also considered that the circumstances in which the confessions were made were not unfair to the defendant, as there was no financial inducement.
Cowan confessed as a result of a confidence in a friendship he had made with one of the undercover officers in the fictitious enterprise.
Ultimately it is important to ensure that if a confession is made, it can only be admitted if the circumstances in which that confession was made suggest it is a reliable confession, and there was no unfairness in the way the confession was elicited.