Day 17 of Daniel Morcombe Murder trial

4.30pm: Mr Edwards, for Cowan, asked the jury whether it was a coincidence that Jackway and Paul Carrington looked similar to the two men seen near to a blue car by witnesses who drove past the Kiel Mountain Rd overpass.

He asked whether it was a coincidence Les McLean saw Jackway using heroin around the time of the abduction of Daniel Morcombe on December 7, 2003.

“I wonder what they talked about. I wonder what Douglas Jackway told Les McLean?’’ Mr Edwards said.

He reminded the jury Les McLean tried to telephone Cowan repeatedly on the day he was arrested.

“He knew somebody else’s deepest, darkest secret,’’ Mr Edwards said.

He told the jury about the evidence of the crime gang’s big boss, Arnold, who warned he would have to “drop him like a hot potato’’ if Cowan was too hot because of his involvement in the Morcombe case.

“To a down-and-out like Brett Cowan, that was everything he ever wanted. Easy work making hundreds of thousands of dollars a year,’’ Mr Edwards said.

“So what he did was played a part and, convincingly so….’’

Mr Edwards refuted the Crown’s assertion that Jackway was a “cheap target’’.

He said Jackway was identified as a target by police and was a suspect until Cowan’s confession.

“He was targeted by police for a very good reason, not because he a was a cheap target…,’’ he said.

Mr Edwards told the jury Jackway was aggressive and had to be restrained when police came to seize his car and examine it forensically.

He detailed Jackway’s different accounts to police about his whereabouts on the weekend on Daniel’s disappearance.

“He just can’t keep his story straight about what he was doing on the day Daniel Morcombe was abducted and that’s because it was lies,’’ Mr Edwards said.

He said the Crown case was that Jackway or a blue car was not involved.

“It opens up a raft of possibilities as to how he knew where the bones were and how he knew where the clothes were, the only rational conclusion is he was told about it,’’ he said.

He told the jury Jackway’s past offending was violent, of a sexual nature and involved threats to kill.

“You might think like Daniel Morcombe, except that he did kill Daniel Morcombe,’’ he said.

Mr Edwards detailed Jackway’s offences against a nine-year-old boy in 1995 in painstaking detail to the jury, insisting it was an abduction in broad daylight where he attempted to rape the boy.

The trial will resume for further closing submissions on Tuesday at 10am.

4pm: Barrister Angus Edwards, for Cowan, started his closing address to the jury at 3.30pm.

He told the jury that unless the Crown had proven there was no possibility Douglas Brian Jackway or a blue sedan was involved in Daniel Morcombe’s abduction and murder, it should find Brett Peter Cowan not guilty.

“It is for the prosecution to disprove those two possibilities,’’ he said. “Prove it beyond a reasonable doubt.’’

He said there was no room in this trial for both Cowan and Jackway.

Mr Edwards said the Crown contended Cowan was in the area at the time and later took the police to the remains, but it had not disproved the evidence of Jackway or the presence of a blue car.

Mr Edwards said it was also on the Crown to prove the only rational explanation for Cowan taking police to the bones and the clothes, was his guilt.

“You know very well there is no forensic evidence … linking Brett Cowan to the abduction of Daniel Morcombe,’’ he said.

“You know every detail of Brett Cowan’s confession was out in the public arena except for the location of the bones and the clothes.’’

Mr Edwards took the jury to a photo of Cowan, taken in November, 2003.

He told the jury the Crown did not tell them Jackway was only released from jail a month before Daniel’s disappearance after serving time for strikingly similar offending.

He said Cowan stood to make hundreds of thousands of dollars, even millions, for his confession to the gang.

Mr Edwards said Arnold, the gang’s big boss, had even offered to “buy him an alibi’’.

“Everything you have heard is against the background of the Crown’s opening address and the danger is, by the time you hear there is a problem, by the time I get to the closing address, you have closed your minds to the presumption of innocence,’’ he said.

Mr Edwards asked the jury not to be overwhelmed by the confessional evidence.

He urged them to go back and assess all the evidence together and look at the alternative explanations other than Cowan committed the offences.

“The real question in this trial is, who did it? Cowan? Jackway? People in a blue sedan?’’ he said.

“Now of course I suggest to you the evidence strongly suggests Jackway and a blue car … because Jackway was driving a blue car,’’ he said.

Mr Edwards asked the jury how it could reject Douglas Jackway’s involvement, or the involvement of a blue car, beyond a reasonable doubt.

“You would not be doing anyone any favours in closing this chapter by convicting the wrong man,’’ he said.

He said Cowan was a man who “played his part a little too well’’, who thought he could give a confession based on what someone else had told him and stood to receive millions of dollars from it.

“Not just foolish to falsely confess but a good liar,’’ he said.

3.30pm: Crown Prosecutor Michael Byrne QC told the jury the confessions were reliable and true.

“We say they are so compelling they’ll overcome any lingering doubt you may have with respect to the evidence,’’ he said.

Mr Byrne said it was not the Crown’s case that Cowan touched Daniel Morcombe inappropriately but by his own admission, he was “starting to pull his pants down’’, when the killing allegedly took place.

“We say that was indecent,’’ Mr Byrne said.

He said Cowan indecently dealt with the body by putting it in the back of his car and dumping it in the bush.

Mr Byrne said it was open to the jury to convict the accused of manslaughter if it could not reach agreement on the charge of murder.

He said that by applying the chokehold to his neck with force over time, Cowan either intended to kill Daniel, saw it as a possible outcome or it would have been seen by an ordinary person as a possible outcome.

He said the way Cowan “immediately and callously’’ disposed of the body was less indicative of an accidental death.

“You might think that speaks of the natural reaction to an intended and foreseeable death,’’ he said.

Mr Byrne took the jury to the confession from Cowan, where he explained what happened to Fitzy on August 9, 2011, by telling him “it’s only because he struggled and I panicked’’ and then, “he tried to get away, I knew if he got away I was f***ed, panicked’’.

“In that context we suggest he panicked and he deliberately killed him as an act of self-preservation,’’ he said.

He said the term “choked him out’’ indicated a significant degree of force had been used.

Mr Byrne said it was consistent with a quickly-formed intent.

“He may well have been an opportunistic offender as you’ve heard him say, but that does not mean he didn’t form the relevant intent,’’ he said.

“He killed him out of self-preservation.’’

He said the Crown contended Cowan murdered Daniel to stop him escaping “so he would not, in his own word, be f***ed’’.

Mr Byrne told the jury it was the Crown’s case that Cowan killed Daniel Morcombe in circumstances where he either intended to kill him, or at least did so while carrying out the unlawful purpose of indecently treating him: “That is, he murdered him.’’

He said Cowan improperly interfered with Daniel’s corpse and in confessions was “finally being honest’’ when he said “yeah … I did it’’.

Mr Byrne urged the jury to return guilty verdicts on all three charges.

3pm: Crown Prosecutor Michael Byrne QC turned his closing remarks to the undercover police operation.

He said at its commencement on April 1, 2011, Cowan was broke and financially doing it tough when he met a man on a plane who introduced him to the gang in Western Australia.

Mr Byrne said Cowan was paid small amounts of money which may have kept him interested and became an enthusiastic participant of the criminal organisation he believed to be “powerful’’.

He said at no stage was Cowan led to believe the gang committed murders or killings.

“Do not for one moment think he must have thought for one moment he had to admit to a homicide to prove himself,’’ he said.

He said instead, Cowan was initiated into a world of corrupt police, black diamonds and prostitution, and led to believe he could earn his way into a big job with a $100,000 payload.

He said Cowan had the mantra “loyalty, respect and honesty’’ drilled into him.

“He can have been in no doubt if he was to be accepted to the gang and have access to the $100,000 payday, he had to be loyal, respectful and honest in his dealings,’’ he said.

Mr Byrne told the jury recordings showed Cowan wanted to join the gang to access money, its lifestyle, mateship and the family aspect.

He said Cowan’s honesty was questioned following the revelations of a corrupt police officer called Craig, who named him as a suspect in the Daniel Morcombe investigation and said he wanted under a fresh subpoena to the Queensland coroner’s court in August, 2011.

Mr Byrne reminded the jury Paul “Fitzy’’ Fitzsimmons had been disappointed the defendant had not told him of the police interest in him with regard to the Morcombe case.

“You might think he knew his honesty was being called into question,’’ he said.

“You might think he must have wondered if his payday was in danger.’’

Mr Byrne said it was the Crown’s contention that Cowan told Arnold the truth when he confessed in a Perth hotel room on August 9, 2011.

He said Arnold asked him “So what do I need to fix?’’ an answer that would have permitted several answers, including “Nothing, I didn’t do it’’, if that was the truth.

Mr Byrne said Cowan could also have answered that he didn’t do it but knew where the body was left and where the clothes were discarded, if that was the truth.

He said Cowan did not respond that way, instead answering: “Yeah, okay, you know, I did it.’’

Mr Byrne said the jury might think Cowan denied it for so long because it was, “as he called it, his darkest secret’’.

He said it was “highly significant’’ that Cowan took Fitzy and Ian to the place where the bones were found, even correcting himself when he takes them to the wrong bridge by accident.

Mr Byrne added there was no evidence Cowan was told about Daniel’s killing by another person.

“You might think he could only have known that from his personal involvement in those events because he killed Daniel, he dumped his body and threw away his clothing,’’ he said.

He said there was no way to know precisely how Daniel came to be in the car, whether he was dragged struggling or went, as Cowan claimed, somewhat willingly.

“The reality, ladies and gentlemen, is we just do not know how he came to be in the car: he could have been dragged struggling, perhaps he went in a more sedate manner,’’ he said.

“The simple reality is that human beings sometimes make errors of judgment and act uncharacteristically.

“It may be that in this case, that was tragically so.’’

1.20pm: Crown Prosecutor Michael Byrne QC told the jury that in the absence of the confessions, there was insufficient evidence to convict Brett Peter Cowan.

“Unless you accept the relevant confessions were both made and were honest in their content, you will acquit,’’ he said.

He said in order to convict the accused, the jury had to accept the confessional evidence as truthful and honest.

“Our submission to you is these confessions are a very powerful aspect of the evidence in this trial,’’ he said.

“They are so powerful that they overcome any lingering questions you may have about the descriptions of the male at the overpass near 2.15pm and what I’ve submitted is the red herring of the blue car.’’

He asked the jury to stop and think for one moment about the “magnitude of confessing to the killing and sexual molestation of a young boy’’.

“We submit to you it is not the sort of thing you would do lightly. It is the sort of thing you in fact are quite unlikely to do unless what you say is true.

“It is clear the defendant contends through the conduct of his legal defence that the confessions are false and we accept it is not impossible to falsely confess.’’

Mr Byrne conceded there had been “demonstrably’’ false confessions by men known as Davey and Kneebone.

He said a false confession was unlikely in this instance.

“In the case of a confession to Arnold, the first time ever he confessed, after years, you have the advantage of video footage to peruse,’’ Mr Byrne said.

“Look at his demeanour. We submit he appears relaxed … look later on, where the footage of his face is much clearer when he is outside smoking.

“We submit he is relaxed, smiling, chatting. Interacting with Arnold in a manner that suggests anything other than he was effectively forced into a false confession to horrendous crimes.’’

Mr Byrne said the jury should consider the “apparently relaxed’’ manner in which he confessed to Fitzy in audio recordings following the secretly-recorded session with Arnold.

“You might think he would be unlikely to repeat confessions or at least provide more intimate detail than he had initially if they were untrue,’’ he said.

“You might think, if effectively forced into a false confession, he would want to minimise the number of times and the number of people he confessed to, but he did not.’’

Mr Byrne said the Crown contended Cowan remained relaxed when Fitzy asked him about the discussion and “willingly’’ told him about it.

The closing address from the Crown will resume at 2.30pm.

1pm: Crown Prosecutor Michael Byrne QC told the jury there had been no satisfactory evidence of what Cowan may have worn on December 7, 2003.

He said Cowan told undercover police later that he wore shorts and a singlet.

Mr Byrne said Frank Davis gave evidence that Cowan was wearing “work clothes’’ while his wife thought he was wearing a singlet and thongs because “that is what he usually wore’’.

He said most of the witnesses who made observations about the man’s hair under the overpass spoke of “longer hair’’, either shoulder length or collar-length.

Mr Byrne took the jury to evidence from Frank Davis, who claimed it would have been fairly long, but in cross-examination agreed it may have been cut short at the time.

He said Tracy Moncrieff testified that Cowan wore his hair short in summer, shaved at times, and it could be a few months between trims.

He said Ms Moncrieff told the jury his hair reached the shoulders before he cut it short again and he wore a thin goatee because he could not grow on the cheeks.

Mr Byrne reminded the jury Ms Moncrieff told the jury Cowan would usually keep his hair short when he was sandblasting, however.

“You might think Ms Moncrieff said it was possible he had long hair but it was not his usual practise, that’s a matter for you,’’ he told the jury.

The jury was shown photos of Cowan smiling.

Mr Byrne showed the jury a photo of Cowan taken by police on December 21, 2003, showing his hair cut short.

12.30pm: Crown Prosecutor Michael Byrne QC said there was a likeness to Cowan in the sketch drawn from a description given by witness Wendy Burnett.

He then re-capped the witnesses who claimed in testimony they made observations after 2pm on the day Daniel Morcombe disappeared.

He said Keith Lipke’s testimony that he passed the Kiel Mountain Rd overpass at 2pm but did not see anyone until he reached the Big Pineapple and a four-door sedan pulled up beside him.

Mr Byrne said Mr Lipke told the jury he saw a tarp in the back of the car and something red move underneath it.

“If his time is right, that cannot be Daniel at that car he saw,’’ he said.

He said the sighting could have many innocent explanations but “it can’t be Daniel’’.

Mr Byrne said it was his submission Barry Kelsey could be considered a careful and considered witness.

The jury was shown a sketch drawn from Mr Kelsey’s description of the man he saw standing near to a boy at the overpass.

“We ask you, ladies and gentlemen, at the end of the day, to compare the photograph of Brett Cowan taken by the police on 21st December with that,’’ Mr Byrne said, gesturing towards the sketch.

“There’s a difference in hair length but look at the structures, look at the prominent eyebrows … we submit you will find that to be a remarkable likeness to Brett Peter Cowan.’’

Mr Byrne said almost all witnesses on the bus referred to a man standing beneath the overpass with his leg “cocked up’’.

He reminded the jury of the evidence from Cowan’s wife, Tracy Moncrieff, who said he had a habit of resting his bent leg on the opposite knee when standing.

He said arresting police, who allowed Cowan the kindness of a cigarette before he was taken into the Homicide offices at Roma St Police Headquarters on August 13, 2011, also observed him leaning against the wall with one leg cocked.

He said all the witnesses could not be right and submitted blue cars or occupants were not involved in Daniel Morcombe’s disappearance.

Mr Byrne said the descriptions were consistent with admissions made by Cowan.

“On a broad basis, we simply say whilst the car and the occupant or occupants are undoubtedly in the area, don’t be swayed by speculation,’’ he said.

Mr Byrne told the jury Douglas Brian Jackway was a “colourful’’ and “spectacular’’ character seen in the trial.

“Our case is of course Jackway was not involved at all,’’ he said.

“You might think based on his prior convictions he is nothing more than a vile individual…

“You see, it would be easy to turn around and say he was involved, just because he’s been involved in something similar in the past, but that would be a stereotypical assumption.’’

He said there was nothing in the evidence that put Jackway on the Sunshine Coast on December 7, 2003.

Mr Byrne said no one had identified it was Jackway standing behind a boy in a red shirt under the Kiel Mountain Rd overpass at Woombye.

“True it is, and maybe it does arouse interest, that Jackway had at the time a blue VC Commodore,’’ he said.

The jury was shown a photo of Jackway’s dark blue-coloured car.

He pointed out the car’s number plate was inconsistent with the car registrations provided to police by witnesses who had seen a blue car on the day Daniel disappeared.

Mr Byrne said there was no contest to the fact Jackway went to the Sunshine Coast on December 8, 2003.

“Given his release from prison on 7th of November, 2003, he was obviously a person police would look at during the course of the investigation … but he simply cannot be put there that day, let alone at 2.15pm when Daniel disappeared,’’ he said.

“He is not to be applauded for his terrible history, it is awful.’’

He said Jackway’s criminal history might have made him “a cheap target’’.

Mr Byrne told the jury they might think “all that body of evidence is nothing more than a red herring’’.


11.20am: Crown Prosecutor Michael Byrne QC told the jury it needed to determine whose evidence was reliable when referring to things witnesses saw beneath the Kiel Mountain Rd overpass at Woombye on December 7, 2003.

“The devil sometimes, ladies and gentlemen, has to be in the detail and when you look at some known facts and reliable facts it will cast a shadow over some of the evidence given at the trial,’’ he said.

He told the jury to consider whether the witness who gave evidence had been a driver or a passenger.

The man on trial for murdering Queensland schoolboy Daniel Morcombe has chosen not totestify.

“At the speed of 60km/h going past, is there an opportunity to have seen what they say they have seen?’’ Mr Byrne said.

“Is there a possibility there recollections have changed over time?’’

He said they should consider the evidence of witnesses who were on the Sunbus when it drove past Daniel Morcombe.

“All of the witnesses on that first bus, the one driven by Ross Edmonds, saw a boy and only one male, so you might think in light of that, that consistency gives you a reliable platform to work from. There was Daniel and one male only at the overpass,’’ Mr Byrne said.

The jury was shown sketches of descriptions provided by witnesses who were on the bus, Abby North, then 13, and Fiona Theuerkauf, 17.

Mr Byrne said it would be hard to believe the individuals represented in the drawings were the same person.

Jury at the Daniel Morcombe murder trial have watched a secret police recording of accused killer Brett Cowan allegedly confessing to killing the teen, his defence lawyer argues it’s false.

“So that is, in my submission, a stark example of how witnesses can see the same thing and describe it differently,’’ he said.

Mr Byrne said there was a large public appeal for information in the course of the investigation and attracted a large reward – in 2008 the reward was $1 million.

“No doubt people wanted to help, they genuinely wanted to help and they are to be applauded for that … but that doesn’t make it relevant,’’ he said.

Mr Byrne said witness Peter McGruddy gave an account to the jury of seeing black sandshoes being pulled into a car at 10.30am on December 7, 2003.

“We submit to you that is the embodiment of somebody genuinely trying to help and yet what at face value was a spectacular description of a chi’d abduction, cannot be Daniel Morcombe’s,’’ he said.

“What was it he saw? I don’t know. Quite frankly, you shouldn’t care.’’

He said people could sometimes draw sinister observation from innocent events.

“I don’t criticise him, he was trying to help,’’ Mr Byrne said.

He told the jury Daniel Morcome left to catch a bus to Sunshine Plaza sometime before 2pm.

Mr Byrne said the couple who ran a nearby service station saw Daniel walking towards the overpass between 1.15pm and 1.20pm.

He said Blake Rogers, a neighbour, saw Daniel walking towards the overpass at 1.25pm.

Mr Byrne said the same witness saw Daniel a second time as he was standing under the Kiel Mountain Rd overpass just before 2pm.

He said other witness evidence helped form a reliable body of evidence that Daniel was waiting at the overpass sometime after 1.30pm.

Mr Byrne said the bus broke down about five minutes before the driver’s ticket was removed at 1.49pm.

He said Ross Edmonds looked at his watch at 2.10pm and the two replacement Sunbus buses had not yet arrived.

He said Mr Edmonds inserted his ticket into the fresh bus at Kunda Park again at 2.20pm, supposedly after passing Daniel.

Mr Byrne said the second bus was only a few minutes behind the first bus.

“It was in that window of opportunity, ladies and gentleman, that Brett Cowan had Daniel Morcombe go missing from the roadside by whatever means he employed,’’ he said.

Mr Byrne said it was likely there was a good volume of traffic and could have been more than one blue car seen nearby.

He said the Crown did not deny a white van was nearby, perhaps broken down, and there was a man or men nearby to it.

“What we say is it is speculative to say any of these people or things had anything to do with Daniel’s disappearance,’’ he said.

He said the prosecution was under an obligation to ensure that all possibly relevant witnesses are placed before the jury, at least those who can potentially advance the Crown case.

Mr Byrne said that simply because the prosecution called a particular witness, it did not mean they were bound by the content of their evidence.

10.55am: In closing, Crown Prosecutor Michael Byrne QC told the jury it was significant that Cowan elected not to give or call evidence last Thursday.

He said accounts given by the defendant had been untested and should be considered when the jury decided what weight to give them.

He said Cowan admitted in an interview with police at Nambour that he “probably’’ wouldn’t have told them if he had abducted Daniel Morcombe.

Mr Byrne said the Crown submitted Cowan was more likely to tell the truth to “his supposed and purported friends than to people he actually knows are police officers’’.

He said there was no evidence of how Cowan came upon the knowledge of where the body had been left and the clothes abandoned.

“He knew where these things were because he is the one who killed Daniel Morcombe and put them there,’’ Mr Byrne said.

Mr Byrne said the jury was entitled to draw inferences from the evidence they heard during the trial.

“We are asking you to draw some rational, logical and reasonable inferences from the known facts,’’ he said.

He said the first was that Brett Cowan acted with a murderous intent to kill and the second was that he must have had special knowledge of the whereabouts of Daniel’s clothing and body because he was involved in the disappearance.

Mr Byrne told the jury the compelling features of the confessions would leave them with no reasonable doubt of Cowan’s guilt.

He addressed the jury on the topic of Daniel Morcombe being the victim in the case.

“There are a series of facts which both individually and collectively point to establishing that the remains are Daniel’s,’’ he said.

“When you put them into combination there is just an overwhelming proposition.’’

He told the jury the 17 bone fragments found were affected by degradation and according to experts had been in the area where they were found for at least five years, consistent with the time Daniel went missing.

Mr Byrne said there was no duplication in the bones and they were consistent with coming from one person.

“Where you are talking about 17 bones it becomes, in my submission to you, that they come from one person,’’ he said.

He told the jury the bones were aged as belonging to a juvenile, were subject to DNA testing and found to be consistent with belonging to a child of Denise Morcombe.

“It is also, we submit, relevant to note that nearly all of the partial bones were located in the top 5cm to 10cm of sand and vegetable matter and largely within the same general area,’’ he said.

“You might think the fact they were in that top 5cm to 10cm of sand and vegetable material suggests they’ve been there for some time, prior to the flooding of 2009 and 2011.’’

He said the final bone found was 15cm deep.

Mr Byrne said there was no direct evidence of the ability of bones to float during flood events, however it might be accepted they would.

He told the jury two Globe shoes found at the crime scene off Kings Rd was a type worn by Daniel Morcombe.

Mr Byrne reminded the jury of evidence heard that the shoes would have been sold at the Main Beach surf store in Sunshine Plaza and just two pairs of that brand and size of shoe were sold from the store in 2002.

“You might think that leads to the inevitable conclusion that they were his shoes found at the scene,’’ he said.

He said remnants of underpants found snagged in Coochin Creek matched a reference pair from Daniel.

Mr Byrne said the pants found nearby where shown to be from a particular production line from Ripcurl sold in the summer of 2003.

He said the jury had heard evidence Daniel would sometimes where belts and they might think the belt found in Coochin Ck belonged to him as well.

“It all points to belonging to Daniel Morcombe,’’ he said.


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