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?