UPDATE: The threat to confess to Daniel Morcombe's murder stemmed back to the inquest into the boy's disappearance, a lawyer has argued.
Barrister Peter Davis told the Queensland Court of Appeal that Brett Peter Cowan confessed to undercover police to strengthen his alibi.
"The clear message given to Mr Cowan was that he must strengthen his alibi or be charged," he said.
Mr Davis said that threat came from the coroner and the counsel assisting the coroner whom he submitted were people in authority.
He said the undercover operation was being planned and prepared before the inquest and the threat of returning for more cross-examination at the inquest was woven into the covert scenarios to catch Cowan.
Mr Davis said this all went towards his appeal argument that the confession to covert police officers was involuntary because it was made under threat or inducement from people in authority.
He said there might be cases where trickery was completely legitimate but he was arguing these moves in Cowan's case raised the unfairness and public policy discretions.
"It's a question of fairness in this sense … we say the unfairness is the circumventing of the right not to confess to abducting and killing Daniel in circumstances where he made it abundantly clear he was not going to give that confession to authorities," he said.
"He manifested an intention he was not going to confess to police."
Mr Davis said his client was robbed of his rights during "the subterfuge in WA (Western Australia)".
"In one of the covert conversations, he said 'I had conversation with police and was interviewed and I didn't want to be interviewed any more'," he said.
Mr Davis said there was not "some spontaneous breach of rules of play" because Cowan was questioned repeatedly - multiple police interviews, the inquest and then even to covert officers initially.
"He refused to make admissions to undercover police until it was eventually extracted from him," he said.
"This isn't something that has occurred spur of the moment (such as) finding evidence during a search."
Mr Davis also spoke about the reliability of the evidence Cowan gave to police about where Daniel's body and clothing could be found.
"There are some shortcomings with the way in which Mr Cowan told police or identified to police where the evidence was," he said.
"It certainly wasn't exactly where Mr Cowan said it ought to have been."
But Mr Davis conceded there was a strong case against his client.
"We can't get away from the fact there was powerful evidence against him," he said.
Daniel Morcombe kill confession 'made under threat'
LAWYERS for Daniel Morcombe's convicted murderer are arguing the confession he made to covert police officers, believing they were members of a huge crime gang, was involuntary.
Barrister Peter Davis told the Queensland Court of Appeal that they would only argue Brett Peter Cowan's confession was involuntary because there was a threat or inducement from a person in authority, and not on any other basis.
"Mr Cowan argues the confession was involuntary," he said.
"There are reasons for that which will become evident.
"If a confession is involuntary then it's inadmissible."
Mr Davis said his client took police to the Sunshine Coast where they found further incriminating evidence; bones and clothing belonging to Daniel Morcombe.
"It was unfair for the confession to be led and secondly it's against public policy to be led," he said.
Mr Davis said the Crown made the concession that if the appeal court excluded the confession, then the evidence found at the Glasshouse Mountains must also be excluded.
He said the second concession was that if Daniel's remains were excluded too, "then on the remaining evidence a jury could not convict Mr Cowan".
"Therefore, if Mr Cowan is successful in his challenge to the confession …. (the result) would be to acquit Mr Cowan," he said.
"This case is all about the confession, it relies on very little else."
Mr Davis told appeal court president Margaret McMurdo, Chief Justice Tim Carmody and Justice Hugh Fraser that police actions were unfair and circumvented Cowan's "right to silence".
He said Cowan had repeatedly, through police interviews and while being "terrorised" during cross-examination in Daniel's inquest, made it clear he was not prepared to confess.
"He makes it abundantly obvious he does not intend to confess to killing Daniel," he said.
"He continually refuses to admit he killed Daniel.
"He has clearly made the point that no matter what is asked of him, he does not intend to the offending against Daniel."
Justice McMurdo asked: "Unless he tells police he doesn't want to talk to them, he's not going to answer any more questions, they're entitled to question him aren't they - as long as he's prepared to answer the questions?"
Mr David agreed until the point he denies killing Daniel.
"When it gets to the point where he says… I did not kill Daniel, yes you did, no I didn't, yes I did, no I didn't; is it then appropriate for the police to say we don't accept that you're not going to tell us anymore about that, other than your denial, we're now going to circumvent that by this ruse?"
Mr Davis agreed but said his client was "point blank denying it".
Mr Davis said police and the Crown knew Cowan was not going to voluntarily confess to killing or abducting Daniel as early as the inquest.
"Both put to Mr Cowan, because he has a very unfortunate criminal history, he never confessed to anything until the game is up," he said.
"He said 'that's right'.
"They knew that he was not going to voluntarily confess to the killing of Daniel or the abduction of Daniel.
"So they circumvented his right not to confess to police.
Mr Davis told the court that they must acquit if the confession was chucked out but if he only won the second ground of appeal, whether a trial judge gave a misdirection about Douglas Jackway's evidence to the jury, then the court must order a retrial.
"It's appropriate for us to concede that if the confessional evidence was properly before the jury then it was open to the jury to convict Mr Cowan," he said.
"It means if Mr Cowan won his appeal on a misdirection ground, but only on the misdirection ground, then there is no basis we could sensibly argue the court could acquit him.
"The appropriate order would be for a retrial.
"I cannot argue for an acquittal if the confessions go in and I'm successful on the second ground."
Denise Morcombe says Cowan appeal waste of our money
BRUCE and Denise Morcombe say it is "bizarre" to think they were educating children about staying safe from predators earlier this week and now attending a hearing where a "predator" is trying to get out of prison.
The Morcombes arrived at the Queensland Court of Appeal in Brisbane just before 10am.
Mr Morcombe said it was "not somewhere we want to be" but they had to see the court process through for their son Daniel.
Brett Peter Cowan was convicted in March of murdering and indecently dealing with Daniel on the Sunshine Coast on December 7, 2003.
He was sentenced to life imprisonment but is now contesting the conviction.
"It's a legal test of the law. It's a test to see whether Cowan's guilty verdict was fair, in particular regarding the covert operation," Mr Morcombe said.
"Fair, tell me about fair. Ask Daniel if it was fair.
"It's been a massive year, there's no question of that.
"The 13th of March seems so far away and yet so close but here we are, another step, let's hope it's another nail in the coffin."
Mrs Morcombe said she knew Cowan had the right to appeal but it was a "waste of taxpayer money".
"I just think it's a waste of taxpayer money, the whole court process, the appeal," she said.
"... Why has he got a chance to appeal?"
Barrister Peter Davis will first argue the appeal against conviction for Cowan.
Director of Public Prosecutions Tony Moynihan will then respond to those submissions and make his appeal, on behalf of the Attorney-General, to increase Cowan's non-parole period above the 20 years set.
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