Did our justice system really come through for the Morcombes?

Warning: This post features explicit details of child sexual abuse that could be triggering for some readers.

“Justice for my boy finally”, Denise Morcombe tweeted after hearing the jury’s guilty verdict in trial of her son’s murderer.

Justice. For Daniel. Finally.

But did our justice system really come through for the Morcombes and for people like them?

While the jury did their duty this week, it seems our justice system has failed in many important ways yet again – especially when it came to protecting our most vulnerable.

Justice was done, but did it really do enough – and, importantly, did it do it early enough?

Since Brett Cowan’s conviction, we can now talk about the fact that he is a serial child sex offender. This is something that the police, prosecutors, defence and judge knew, but it was kept from the jury (and the public) so that it didn’t prejudice the jury’s deliberation on the case.

This notion of keeping prior convictions secret from the jury is an important feature of our justice system – and it is one worth keeping. Knowing that someone has previously committed a similar crime is highly prejudicial. As a juror, it’s natural to think that if the accused has done it before, they’re likely to do it again, and any reasonable juror might be tempted to give this information more weight than other evidence (even if the judge tells you not to). Keeping prior convictions from the jury forces the police to find enough evidence to support every arrest and ensures the prosecution proves every case on its merits. It makes sure everyone does their job – and ultimately ensures a fair trial.

And everyone, even repeat sex offenders like Cowan, deserves a fair trial.

We now know that in Queensland in 1987, Cowan took a seven year old into a public bathroom, where he raped and choked him. For that crime, Cowan was sentenced to two years in prison and served 14 months. In 1993, he raped and a brutalised a six year old in Darwin. That boy was left with head injuries, a collapsed lung, a deep cut to his scotum, a bloodied nose and a scratched body. For that rape, he was sentenced to 7 years’ prison, and was released on parole after 3.5 years.

Five years after that, Daniel was murdered.

While it is ridiculous to say that anything could have kept Cowan off the street that horrible day, on any measure, seven years is a terribly low sentence for raping and brutalising a child, especially when the offender has prior convictions and a history of offending. What were his parole conditions? Were they monitored? Was treatment for his sex offending part of his prison program or a condition of his parole?

It seems that the justice system failed the Morcombes and families of other children long before 2004.

But it wasn’t the only time the justice system failed in this case.

The police interviewed Cowan within days of Daniel’s disappearance. Cowan was placed in a list of 502 sex offending persons of interest. By 2011 (some six years later), this number had been whittled down to 33. Cowan was suspect number 7. Now, I understand that evidence gathering takes time and attention to detail is important, but the most important issue for the Queensland Police Service to address in its (announced) review will be: why did this investigation take so long? Was it not a priority for the police service? If not, why not? Public pressure led to a coronial inquiry in 2011 – did that provide the police service with the nudge that it required to get the job done?

The third failure is another one of time – perhaps the failure that Mrs Morcombe was referring to when she said that he son had his justice “finally”?

Cowan was arrested in August 2011. He was committed to stand trial at the start of 2013. His trial finally started in February 2014, some two and a half years after Cowan’s arrest.

In May 2013, the Chief Justice of the Supreme Court of Queensland raised concerns that the Morcombes had been waiting too long for the trial of Brett Cowan – and even Cowan’s lawyers were asking the Director of Public Prosecution’s (DPP) where his case was. The Chief Justice attributed the delay to insufficient numbers of prosecutors in the Office of the DPP which was leading to a build-up of work.

It seems that that the Morcombes’ ordeal (and the ordeal of other people waiting for trials) was drawn out and their pain protracted by something as mundane as an administrative backlog of cases. The Attorney General should be ashamed that emergency funds were not allocated to ensure that this case and others like it are dealt with promptly so that the suffering of families and victims of crime are not prolonged unnecessarily. It shows a disdain for victims, accused, witnesses and the community.

With Cowan’s conviction, the final hurdle was the sentence, which was handed down by Justice Atkinson today. And it seems that here, thankfully, there was no failure.

In Queensland, there is a mandatory life sentence for murder (it’s mandatory in South Australia and NT, too), so once the Cowan jury returned a guilty verdict, the focus was on what the non-parole period was going to be. Justice Atkinson took into his account his criminal history and set the non-parole at 20 years.

Interestingly, Justice Atkinson was not of the view that Cowan should necessarily be released in 20 years’ time, but conceded that was “not in [her] control”. That was either a strong hint to the parole board to think long and hard before granting parole (the judge encouraged the parole board to heed her warning: “whenever anyone is considering the prospect of granting you parole, they should mark my words, that you are a convincing, plausible and adaptive liar”), or a strong hint to the Queensland Attorney General who has powers to indefinitely detain sex offenders in prison even after their sentences are complete if they have not been rehabilitated (clearly something for the AG to keep in mind in 2024).

Either way, it is clear that the judge had heard enough during this trial to be satisfied that Cowan was an offender of the worst possible kind.

Yes, justice was done this week, but bigger questions remain about how our justice system is dealing with vulnerable people – victims, families and the community.

When it comes to how long this investigation has taken, how long it took to come to trial and why Cowan was in the community anyway, the justice in this case seems much less clear.