A senior NSW prosecutor has defended using the question of whether 12-year-old girls have breasts to back up her finding that there was little chance former Olympic swimming coach Scott Volkers would be convicted of sex abuse charges.
In 2002 Volkers was charged with a range of sexual abuse offences relating to three young female swimmers – Julie Gilbert, Kylie Rogers and Simone Boyce – but those charges were later dropped.
A royal commission into child sex abuse is currently examining how sports bodies and top prosecutors handled the allegations.
Queensland Police reopened the case against Mr Volkers in December 2002.
In December 2003, Queensland‘s Director of Public Prosecutions (DPP) sought the advice of the NSW DPP as to whether the new brief of evidence supporting the allegations had reasonable prospects of conviction.
The NSW DPP, Nicholas Cowdery QC, tasked deputy senior crown prosecutor Margaret Cunneen SC with preparing the advice.
In her advice, Ms Cunneen questioned whether the charges against Mr Volkers had a reasonable chance of success because it was legitimate to ask – following Ms Gilbert’s assertions that Mr Volkers had massaged her breasts – whether 12-year-old swimmers even had breasts.
At the royal commission on Thursday, Ms Cunneen said that was still a valid question for a jury to consider.
“If a defence counsel could raise a doubt that there was any palpable breast tissue, through the clothing of course, then we’d be in trouble trying to say that she had breasts,” she said.
On Tuesday, Ms Gilbert told the ABC’s 7.30 program Ms Cunneen’s questions regarding her allegations were deeply hurtful.
Advice based on whether jury would accept evidence: Cunneen
The counsel assisting the commission, Gail Furness SC, also asked Ms Cunneen whether it was fair to say she does not resile from her original advice to the Queensland DPP regarding any conviction being unlikely.
“I take it from the terms of [your] statement Ms Cunneen that you don’t resile in any way from the advice you gave in 2004 in relation to Mr Volkers?” she said.
Ms Cunneen answered that she stands by the advice.
“Bearing in mind it was 2004 and that maybe [there are] some considerations in relation to juries being more amenable in 2014,” she said.
“We were probably only two-thirds of the way through the evolution, in terms of public knowledge and acceptance of child sexual assault cases then.
“But no, I don’t resile from the advice at all.”
She told the commission the credibility of the three alleged abuse victims was not in question, rather she was questioning whether a jury would accept their evidence.
“Sexual assaults are harder to prove than murders and robberies because it so often comes down to one word against another,” she said.
“The judge would tell [the jury] ‘probably is not enough, the gravest suspicion is not enough, you have to be satisfied beyond reasonable doubt that that happened’.”
Volkers was exempt from holding blue card: inquiry
Earlier, the commission heard Mr Volkers was exempt from holding a blue card in Queensland, despite the fact his application was rejected.
He applied for the blue card – which is needed for working with children – along with about 60 other employees from the Queensland Academy of Sport in mid-2008.
The royal commission heard Mr Volkers’ application was the only one to be issued with a negative notice and his application for a blue card was rejected.
The director of Queensland’s blue card system, Michelle Miller, told the inquiry the recommendation to reject Mr Volkers’ application was handed down before it was decided he was exempt from the requirement to hold a blue card because he was a government employee.
On Wednesday, Swimming Queensland chief executive Kevin Hasemann agreed to review Mr Volkers’ status as a life member of the organisation and a Hall of Famer.
Mr Hasemann admitted to the commission he did not investigate the allegations against Mr Volkers before employing him.
The hearing continues.