The defendant's application to exclude all evidence of anything said by him to police or agents of the police, including any alleged admissions either by word or conduct, is refused.1.
The defendant’s application to exclude the evidence proposed to be led in relation to his prior sexual misconduct with A and B is allowed. 2.
CATCHWORDS:
CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – VOLUNTARY STATEMENTS – VOLUNTARINESS – GENERALLY – where the applicant was charged with murder, indecent treatment of a child under 16 and interference with a corpse – where the applicant applied pursuant to s 590AA of the Criminal Code to have the evidence of admissions made by words or deeds to police and all evidence obtained as a result excluded on the grounds of lack of voluntariness or in the exercise of judicial discretion because of unfairness – where the admissions were obtained by an undercover police operation – where for the purpose of the application the applicant conceded the reliability of the confessions – whether the admissions were made voluntarily – whether there are discretionary reasons to exclude the admissions
CRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND CO-INCIDENCE – ADMISSIBILITY AND RELEVANCY – PROPENSITY EVIDENCE OF PRIOR CONVICTIONS – where the applicant had two prior convictions for sexual offences against young boys – whether the opportunistic sexual offending by the applicant against two much younger boys bore no reasonable explanation other than inculpation of him in the abduction and murder – whether the prejudicial impact of the similar fact evidence outweighs its probative value – whether the evidence of the applicant’s prior sexual misconduct should be excluded
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Cowan [2013] QSC 337
Case
[2013] QSC 337
Decision Date
CaseChat Overview and Summary
The case of R v Cowan involved the defendant, who was charged with the murder of a child, indecent treatment of a child under the age of 16, and interference with a corpse. The defendant sought to exclude all evidence of admissions made to police, either by word or conduct, as well as evidence obtained as a result of those admissions. This application was made under section 590AA of the Criminal Code, on the grounds that the admissions were not voluntary or, in the exercise of judicial discretion, were unfair due to the manner in which they were obtained through an undercover police operation. Additionally, the defendant sought to exclude evidence of his prior sexual misconduct with two boys, arguing that it was irrelevant and prejudicial.
The court was tasked with determining whether the admissions made by the defendant to police were voluntary and, if not, whether there were discretionary reasons to exclude them. The court also needed to consider whether the probative value of the evidence of the defendant's prior sexual misconduct with two boys outweighed its prejudicial impact, potentially affecting the fairness of the trial. The defendant conceded the reliability of the confessions for the purpose of the application, focusing the argument on the voluntariness and fairness of the admissions.
In its reasoning, the court found that the admissions made by the defendant were voluntary, as they were made without coercion or undue influence, and thus not excluded on that basis. However, the court exercised its discretion under section 590AA to exclude the evidence of the defendant’s prior sexual misconduct with the two boys, as the probative value of that evidence was significantly outweighed by its prejudicial impact. The court determined that the similar fact evidence did not bear a reasonable explanation other than inculpation of the defendant in the current charges and was therefore excluded.
The final orders of the court were that the defendant's application to exclude all evidence of admissions made to police was refused, while the application to exclude the evidence of the defendant’s prior sexual misconduct was allowed.
Orders
Orders of the court
The defendant's application to exclude all evidence of anything said by him to police or agents of the police, including any alleged admissions either by word or conduct, is refused.1.
The defendant’s application to exclude the evidence proposed to be led in relation to his prior sexual misconduct with A and B is allowed. 2.