THE jury in the Daniel Morcombe case should have been given stronger directions about possible communication between three criminals on where the Sunshine Coast teen had been dumped.
That was the second part of the argument barrister Peter Davis mounted in the Queensland Court of Appeal as he presented the case to overturn Brett Peter Cowan's murder conviction.
He said while the Crown case was mostly about Cowan's confession to murdering Daniel on December 7, 2003, and finding Daniel's remains which flowed from the confession, there was "not a bad" alternate theory to what Cowan says was a false confession.
Mr Davis said the directions should have had more emphasis on the alternate theory that Douglas Jackway abducted Daniel, murdered him and dumped his body, that he could have told fellow prisoner Leslie McLean when they were in the same prison, and that McLean could have passed that information on to Cowan.
"We don't shy away from the fact that Mr Cowan took the undercover police to an area on the Sunshine Coast where some evidence was found was in fact, a piece of evidence the jury could take in to account, and no doubt did take into account, in thinking the confession was true," he said.
"Obviously defence counsel at the trial understood that if the jury was satisfied that Mr Cowan knew of the location of the evidence because he was involved in Daniel Morcombe's abduction and murder, then given the confessions to Arnold and to Paul, acquittal would be difficult.
"What the trial shows is an obvious forensic plan to create doubt about the way in which Mr Cowan came to know the location of the evidence on the Sunshine Coast.
"An alternative proposition had to be put up and then the jury persuaded to have a reasonable doubt as to the result, given that alternative theory.
"What was put up was that it was possible that Jackway committed the offence, communicated the details to the man called (Leslie) McLean who then communicated them to Mr Cowan.
"There was no direct evidence of any relevant communication between Jackway and McLean or McLean and Mr Cowan.
"Indeed the communication was denied by both Jackway and McLean.
"But in my submission to you can draw inferences from proven facts by applying common sense, connecting pieces of evidence and drawing rational, logical inferences and conclusions.
"If Mr Cowan's knowledge is not explained, and by that I mean there's not a reasonable doubt about that, conviction in this case is almost inevitable. We face that on appeal.
"But it is not for the defence to prove anything and it's certainly not for the defence to prove that Mr Cowan did in fact speak to McLean and Mclean did in fact speak to Jackway.
"There was evidence Jackway was in the vicinity, there was evidence of a blue car, there was evidence of a blue car being stopped on both sides of the road, evidence of tattoos, there was one witness who said she saw a blue car about that time and there was a struggle going on in back of car."
When Justice McMurdo asked whether there was any evidence about why police discarded Jackway as a suspect, Mr Davis said there was nothing before the jury.
"I'm told the reason for that was because it wasn't explored before the jury and the Crown couldn't do it and defence wouldn't do it and, of course, there was the undercover operation that had landed Mr Cowan in the dock," he said.
"The ground of appeal is expressed in terms of a misdirection but in hindsight probably more it's a miscarriage.
"Unless there's some doubt in the jury's mind about how Mr Cowan came to know about the location of the evidence found on the Sunshine Coast, then adding his knowledge to the confession, the case is very strong.
"But there was an explanation, not a bad one in this sense, that any defence counsel looking at this case would realise that, as my learned junior did, there was an alternative.
"It was unlikely there were going to be admissions by Jackway and McLean but there were circumstantial evidence that could be pointed to Jackway, there's a link between Jackway and McLean, and a link between McLean and Cowan so what should have happened, in our submission, is that the jury ought to have been told these things.
"It ought to have been told there is no direct evidence of communication between Jackway, McLean and Cowan but there is evidence consistent with Jackway being involved in the abduction.
"There is evidence of contact between Jackway and McLean after Daniel's abduction.
"There's evidence of a connection between McLean and Cowan.
"Jackway may not readily admit to conversations with McLean let alone admit he told McLean about the position of the evidence on the Sunshine Coast, as to do so would be against his interests.
"McLean also denied knowing the location of the evidence found on the Sunshine Coast but he may also reason not to implicate himself.
"There was also problems with Mr McLean, a multiple personality disorder.
"They should have been told you have to weigh the possibility of their having been communication between Jackway and McLean and Cowan.
"That's what should have happened and it didn't, what in fact happened is that defence counsel suggested they draw inferences so that there be facts proved and her Honour reinforced that."
Coroner's role in Daniel Morcombe case questioned
DANIEL Morcombe killer's barrister has suggested the coroner's court abused its powers in delaying a summons being issued to fit in with an undercover operation.
But Peter Davis said he could not assert the coroner or counsel assisting the coroner knew what the operation entailed or that the summons would be used to illicit a confession from Brett Peter Cowan.
In responding to a question from Queensland Court of Appeal president Margaret McMurdo, Mr Davis said counsel assisting, Peter Johns, knew there was an operation planned when he "terrorised" Mr Cowan at the inquest but knew nothing more.
"So it's not asserted by us that any cross examination was affected by any knowledge of the undercover operation," he said.
"The point of the summons is this; the fact that the summons had been issued and the threat of Cowan having to make another appearance at the inquest is woven into the scenarios being used in the undercover operation.
"The police set up a scheme whereby undercover police pretend to be criminals befriending Mr Cowan.
"He obviously thought they were all participating in criminal behaviour.
"August 4, 2011, is the first time we can find that the subject of Daniel is raised during the undercover operation.
"There seems to be little doubt that the catalyst for the conversation on August 4 was the issue on July 29 of a summons by the coroner for (Cowan) to be recalled to the inquest on October 26.
"There are some interesting twists to that because the summons was definitely issued on July 29, 2011, but it was never served.
"It seems that even though it was never served, the police were very concerned they didn't want to make a representation to Cowan that there was a summons unless there was one."
Cowan admitted on August 9, during a recorded conversation with the "big boss" after a three-month sting in Western Australia, that he murdered Daniel Morcombe on December 7, 2003, and dumped his body in Glasshouse Mountains bushland.
Police had begun the undercover operation to snare him on March 28, three days before Cowan was to give evidence at the coroner's inquest into Daniel's disappearance.
"The crown say in their submissions that the inquest and the police investigations were completely independent of each other - that can't be right because there's firstly the question of timing," Mr Davis said.
But when Justice McMurdo asked whether the inquest was adjourned to allow the undercover police operation to continue, Mr Davis said the inference would be that it was not.
"It was adjourned generally and then there was some further investigation by the coroner's office as to some things Mr Cowan had said (at the inquest)," he said.
"That then led the coroner on April 6 or 7 to want to bring Mr Cowan back.
"Firstly, the coroner independently adjourned the coroner's inquest, two, he made decision it resume, three, he made decision to resume it with Mr Cowan as a witness
"So you haven't really got a situation where the coroner is being asked just simply hold off, you've got a situation is the coroner is being asked to do things on particular days.
"What seems to be happening is this - the coroner has a bona fide reason to resume the inquest and recall Cowan. We completely accept that.
"The reason he has that bona fide reason is because of the extra evidence he's got in relation to the RSL and the activities of the alibi witnesses."
The corner's inquiries uncovered that Cowan's alibis had used loyalty cards at the Beerwah RSL which altered the timing of Cowan's trip.
This information shifted Cowan's availability to commit the crime during a trip from Beerwah to Nambour to pick up a wood chipper, using the Nambour Connection Road where Daniel was waiting for a bus to go Christmas shopping.
"The coroner clearly knows that the police are engaged in some covert activity," Mr Davis said.
"And must know that it's to do with Cowan because the conversations are all about the summons to Cowan.
"There are then requests to hold off the issue of the summons as that may interfere with the covert operations.
"Then, critically, there's a request to issue the summons on a particular day, to be served.
"There's really two ways of looking at it. Potentially it's an abuse of process by the coroner or the coroner's powers … however it seems pretty obvious that the coroner doesn't know the details of what's was going on in WA.
"So if for instance the coroner knew the summons was being used as part of a ruse then perhaps an argument could be raised the coroner had abused the coroner's powers.
"What the police were trying to do was to say 'the coroner has a power granted by the legislation, we want the coroner to exercise that power not necessarily for the purpose of having Cowan returned but we want him to exercise that power at our direction, persuasive direction, so that we can use for … setting him up, for putting a particular scenario in place, put pressure on him to make Cowan confess'.
"We submit there is nothing in principal wrong with the suggestion that the police can abuse the process of the corner's court and we say they have.
"The police are using the summons … as a threat and an inducement in order to persuade someone to make a confession."
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