Pros and Cons of Judge and Jury Trial in Daniel Morcombe Case

This report analyzes the pros and cons of a judge and jury trial in the Daniel Morcombe murder case, including the influence of social media on the trial. It also discusses the types of punishment given to the offender under the Criminal Code Act 1899.

Running head: CRIMINAL LAW
CRIMINAL LAW
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Executive Summary
This report analyses the pros and cons of a Judge and Jury or a Judge only trial decision
in a trial has been done in relation with a case study. In the report a further analysis has been
made in regard to the influence of social media over the trial matters by the judges. The case that
had been selected for the analysis of the report is the Daniel Morcombe killer case. This report
would be seen to be answering the following questions- whether there was a judge and jury trial
or judge only trial and the pros and cons of both, whether there was a media influence on the
decisions of this case and what were the types of the punishment that have been given to the
offender. These answers have been given in consideration with the Criminal Code Act 1899.

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Table of Contents
Introduction......................................................................................................................................3
Discussion........................................................................................................................................3
Method.........................................................................................................................................3
Case..............................................................................................................................................4
Analysis.......................................................................................................................................6
Conclusion.......................................................................................................................................7
Recommendation.............................................................................................................................8
References........................................................................................................................................9
Appendices......................................................................................................................................9

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Introduction
In this report a detailed analysis has been done about the pros and cons of a judge only
trial in relation to the Daniel Morcombe Killer case for making it easier for the department for
understanding the pros and cons of the trials that are conducted by the judges. A further analysis
has been done in regard to the influence of the social media over the judges in the trial cases. In
this report the complete knowledge would be provided in relation to the pros and cons of the
trials in the Australian Courts in respect with the various legislations that deal with the criminal
cases in Australia. In this report the following questions are being answered in relation to the
Daniel Morcombe murder case - whether there was a judge and jury trial or judge only trial and
the pros and cons of both, whether there was a media influence on the decisions of this case and
what were the types of the punishment that have been given to the offender. These answers have
been given in consideration with the Criminal Code Act 1899. In the case the judge only trial
was seen to be important over a judge and jury trial since the judges are seen to be having higher
knowledge in regard to the application of relevant laws especially in matters that concern with
serious offences.
Discussion
Method
There had been multiple charges made against Brett Peter Cowan. The first charge
against him was under section 302 of the Criminal Code Act 1899 for the murder of Daniel
Morcombe. Under this section murder has been described as to be committed where an act or

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omission of an act of the accused causes the death of a person, and that act or omission was done
with an intention to kill or to cause grievous bodily harm. He was further charged under section
351 of the Criminal Code Act 1899 assaulting a child with the intention to rape. Cowan was also
charged under section 352 of the Act for committing sexual assaults a number of times. Under
section 210 of the same Act he was found guilty for indecent treatment towards children under
the age of 16 years. All the evidence relating to same that can be seen to be relevant had been
provided to the court at the time of the trial. As it was found at the time of trial that Cowan had
signed up in many websites for gay dating and had committed assaults towards many boys from
those websites he was charged under section 246 of the Criminal Code Act 1899 for unlawful
assault. Cowan was further seen to be committing rape with several children and had committed
long and extreme sexual acts with them and was held under section 229B of the Sexual Offences
(Protection of Children) Amendment Act 2003 for the sexual offences against children. Under
Part 5 sections 302 and 305-309 proper and relevant evidence had been provided for proving all
the charges Cowan was held liable for. Around 116 witnesses were present and 200 exhibits as
evidences were submitted for proving all the charges against him. Cowan was seen to be
pleading not guilty and further declined to give witness. He was found guilty of all the charges
made against him. The judge sentenced him to life imprisonment with a possibility after 20 years
for a parole, three and half years for indecent act with Daniel Morcombe and for two years for
interference with the corpse of Morcombe.
Case
The case in this report is relating to the trial of the murder of a 13 year old boy, Daniel
Morcombe. Brett Peter Cowan, the killer of Daniel Morcombe, was seen to be convicted for the
murder in the year 2014 after 8 years of committing the crime (7NEWS, 2019). Before the trial

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was held with the support from Daniel’s parents the suppression order that prohibited the
publication of the murderer’s name was withdrawn. The trial was held in the Supreme Court of
Queensland under Justice Roslyn Atkinson. There were around 116 witnesses and many
evidences that had been presented in front of the Court. Cowan was seen to be pleading not
guilty and further declining to give evidence. Cowan was charged under the provisions of the
Criminal Code 1899. He was found guilty of all the charges made against him. The judge
sentenced him to life imprisonment with a possibility after 20 years for a parole, three and half
years for indecent act with Daniel Morcombe and for two years for interference with the corpse
of Morcombe. All the sentences were to be served in concurrence. After his imprisonment in
2014 a riot was being started by his fellow inmates for attempting to attack on the killer of
Daniel Morcombe. (Kidspot, 2018). He was attacked twice while being in the prison (The West
Australian, 2018).
After the start of the trial the defense were seen twice to be applying for a mistrial on the
grounds that fair trial could not be ensured for a fair and proper hearing. The first application for
mistrial was made because of a newspaper headline which was ordered by Justice Roslyn
Atkinson to be removed from the website of the paper and all other social media apps. The
second application for mistrial was made after the juries’ visit to the site where Daniel
Morcombe was last seen and there was a note at the memorial site in which it was written the
victim could only be at rest when Cowan would be convicted (ABC News, 2014). Footage of the
arrest of Cowan was also published by the media after the trial (7NEWS, 2019).

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Analysis
This report was seen to be analyzing the case of Brett Peter Cowan, a serial sexual
offender and the killer of a 13 year old boy Daniel Morcombe. The offender was seen to be
committing murder, sexual and indecent assaults, rapes and was further indulged in gay dating
websites. The case was evaluated under the provisions of Criminal Code Act 1899. A judge and
jury trial was seen to be held in the Supreme Court of Queensland for this case.
The pros and cons of the judge only trial and judge and jury trial can be discussed as
follows. The judge only trial or bench trial is the trial where the judge can be seen to be presiding
over the trial and unlike the judge and jury trial the juries are not present (Horan, J., 2012). The
advantages of a judge only trial are- they are less time consuming, the judge only trial can be
seen to be less complex than a jury trial, a judge only trial can also be less formal some times as
the defense and the prosecuting attorney can, in certain circumstances, be able for discussing
some or all of the facts pertinent to the case, in the cases that have been presenting with legal
subtleties or complex facts the defendants are often seen to be selecting the bench trial. For the
determination of the case facts, instead of presenting the testimony of the witness and
documentary evidences, a stipulation of the facts can also be seen to be provided to the judges in
a bench trial. If the evidence that had been presented in front of the court would be warranting a
guilty or a non guilty verdict is decided by the judge himself, in furtherance it can be said that the
judges have the experience, knowledge and training for handling similar cases hence they can
pass the verdict without any kind of bias or any outside influence. A full disclosure of the case
releasing all the information in relation to the case are done in case of a judge only trial and if
there is any dissatisfaction on any part of the judgment of the trial it can be challenged by the
parties in any of the courts that have the access of trying the case.

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The disadvantage of the judge only trial is that there is only one finder of the facts and
hence the opportunity for at least one person to be agreeing to each side of the case, as found in
the jury trials, is not present.
The benefits of the judge and jury trial can be discussed as following- it has generally
being argued by the advocates of the jury trials that instead of putting the responsibility of
decision making in the hands of a single person, having a group consisting of many people for
the decision making process can be reducing the likelihood of the bias or prejudice of a single
person influencing the outcome of the case. As the jury has been made up of regular people, the
parties in the case often feel that the jury would be sympathizing with the defendants especially
in a criminal case (Brooks, 2017)
The disadvantages of a jury trial are that the jury trial can be seen to be taking more time,
a jury trial is also costlier than a judge only trial, the lack of expertise and experience of the
juries can make it hard for them to be understanding complex cases as was seen in the trial of
Vicky Pryce (The Guardian, 2018). The jurors also can be failing to understand the instructions
of the judges or even fail to comprehend the burden of proof; a juror can further be biased by the
outside influence or because of the media influence. As the jury deliberations are secret there is
no way for the parties to know the reason for the decision and the level of transparency is absent.
The case of Daniel Morcombe’s murder has been highly sensationalized by the
Australian media from the very beginning. As the case had garnered so much media attention it
was no surprise that when the news of arrest was first released, people in the social media sites
were eager to weigh in their opinions. These discussions, however, have proved to be a threat to
the trial. There were even two applications for the mistrial by the defendant’s prosecutors on the

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grounds that fair trial could not be ensured for a fair and proper hearing. The first application was
made because of a newspaper headline which was ordered by Justice Roslyn Atkinson to be
removed from all social media sites that. The second application was made after the juries’ visit
to the site where Daniel Morcombe went missing and there was a note was present at the site in
which it was written the victim could only be at rest when Cowan would be convicted. The judge
denied the applications by ruling that the directions that were given to the jury for ignoring any
type of media coverage could be seen as sufficient.
The case in question was a judge and jury trial held under Justice Roslyn Atkinson. In
this case it was seen that the defendant pleaded not guilty and hence as per section 604 of the
Criminal Code Act 1899 he was deemed to be demanding that his pleas should be tried by a jury.
However given the advantages and disadvantages of both the systems it can be observed that a
judge only trial would have been a better option for the case.
Conclusion
In this report a detailed analysis for the pros and cons of a judge only trial in relation to
the Daniel Morcombe Killer case has been discussed. In furtherance analysis has been done in
regard to the influence of the social media over the judges and the juries in the trial cases. In
relation to the Daniel Morcombe murder case the following question have been answered in the
report - if there was a judge and jury trial or judge only trial and their pros and cons, if there was
a media influence on the decisions of this case and the types of the punishment that have been
given to the offender under the specific legislations. Answering the questions it was seen that

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there was a judge-only trial because of the pre-judicial pre-trial publication of the information of
the case. Peter was given a life imprisonment for all the offences he committed under the
provisions of the Criminal Code 1899. From the above discussion it has been concluded that in a
high profile criminal offence case, like the Daniel Morcombe murder case, having a judge only
trial is a best option as there are high chances of prejudicial pre-trial publicity of the case by the
media which can lead to be influencing the jurors and making them biased towards their
decisions.
Recommendation
In relation to the case it is recommended that the privacy of the parties needs to be
maintained. It should also be ensured that prior to the final judgment of the court no information
regarding the dispute should be highlighted by the media. the security of both the parties to the
case needs to be ensured by the government and it should further be ensured that no person in
relation to the case is being harmed in any way. Media should altogether be prohibited for
publishing any information in relation to the case before the trial by way of suppression orders,
contempt and penalties.

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References
Legislations
Criminal Code 1899
Sexual Offences (Protection of Children) Amendment Act 2003
Books and Journals
Horan, J., 2012. Juries in the 21st Cemtury. Federation Press.
Brooks, T., 2017. The right to trial by jury. In The Right to a Fair Trial (pp. 83-98). Routledge.
Appendices
7NEWS (2019). WATCH: This man killed Daniel Morcombe. This is the dramatic moment he
found he didn't get away with murder. [online] 7NEWS.com.au. Available at:
https://7news.com.au/news/crime/brett-cowan-the-moment-he-found-he-didnt-get-away-with-
daniel-morcombes-murder-c-44793
Kidspot (2018). Prisoners start riot to attack Daniel Morcombe’s killer. [online]
Kidspot.com.au. Available at:
https://www.kidspot.com.au/parenting/real-life/in-the-news/prisoners-start-riot-to-attack-daniel-
morcombes-killer/news-story/bd4bc096fa9a6c8bee392fb12417dad7
The Guardian (2018). The Pryce of a jury's failure. [online] the Guardian. Available at:
https://www.theguardian.com/law/2013/feb/21/vicky-pryce-case-jury-failure

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The West Australian (2018). Daniel Morcombe’s killer attacked again. [online] The West
Australian. Available at: https://thewest.com.au/news/crime/daniel-morcombes-killer-peter-
cowan-attacked-again-in-prison-ng-b88826215z
ABC News (2014). Judge twice stopped short of declaring Morcombe mistrial. [online] ABC
News. Available at: https://www.abc.net.au/news/2014-03-13/daniel-morcombe-murder-judge-
stopped-short-of-mistrial-twice/5315088