Unfair to prosecute swim coach again, court told
THE decision of incoming judge Michael Byrne to prosecute top Australian swimming coach Scott Volkers a second time over child sex offending has been called into question in a Queensland court.
The former top swimming coach to stars including Susie O'Neill and Sam Riley has been charged with five counts of indecent treatment of a child under the age of 16.
The charges related to two teenage girls, with the offending allegedly occurred at Aspley and Bald Hills north of Brisbane from 1984-87.
Volkers was originally charged in 2002 over the alleged incidents, but the prosecution was later discontinued.
His lawyers were again trying to get the case thrown out of court today.
During a pre-trial hearing in the Brisbane District Court, Judge David Reid was told the 2017 decision to re-charge Volkers with the same child sex offences was unfair.
Defence barrister Phillip Boulten SC argued the charges should be thrown out because the legal proceedings gave rise to "unacceptable unfairness".
"The institution of proceedings and the continuation (of them) constitutes an unjustifiable oppression of the accused, in a legal sense, such as to justify a permanent stay," he said.
Central to the argument for discontinuing the charges being made by the Sydney-based silk is the decision of former Queensland director of public prosecutions Michael Byrne QC to re-prosecute the matter.
Mr Byrne was in December appointed as a judge to the Queensland District Court.
The court was told that when the charges were dropped almost two decades ago, then premier Peter Beattie called for the then Crime and Misconduct Commission to review the conduct in the case.
"On 27 September 2002, the CMC publicly announced an inquiry… it was extraordinary that the decision-making of the DPP would be called into question by public officers," Mr Boulten said.
He argued the report later produced by the CMC was critical of the decision not to prosecute the case.
He argued the decision to re-prosecute Volkers years later was not made because fresh evidence had come to light.
Mr Boulten said Mr Byrne had made the decision to reinstate the charges before additional evidence was gathered from the complainants.
The court heard that since the original investigation into Volkers' alleged offending, only two witnesses had been able to be contacted to verify statements made years earlier.
The Royal Commission into Institutional Responses to Child Sex Abuse in 2014 also played into the decision to reopen the case, the court was told.
During the hearing, Judge Reid suggested "the decision to institute proceedings when they did may reflect a belief in the department that there was been a change in social attitude, perhaps relating to the Royal Commission, perhaps it was one of a number of factors that meant that there was a different assessment of child-sex cases that come… from a child's evidence".
Volkers was in 2018 committed to stand trial over the string of historical child sex offences.
He has not entered a plea and a hearing date has not yet been set for the charges.
The pre-trial hearing is expected to run for three days.