R v Cowan

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.