Legal advice laid bare at royal commission

A decision 10 years ago not to re-charge controversial swimming coach Scott Volkers with indecent assault against former students has provided the public with a rare glimpse into the world of public prosecutions.

NSW Crown Prosecutor Margaret Cunneen, SC, was asked in late 2003 to provide advice for the Queensland Director of Public Prosecutions (DPP) on whether there was sufficient new evidence to justify recharging Volkers.

This week Ms Cunneen has been questioned about this advice by the Royal Commission into Institutional Responses to Child Sexual Abuse, sitting in Sydney.

Volkers, The former swimming coach of golden girl Susie O'Neill had been charged in 2002 with offences allegedly committed against three former students in the 1980s.

The Queensland DPP opted to drop the charges later that year, a process that was then criticised by a crime and misconduct commission.

But in 2003 the Queensland DPP then sought advice on whether or not there was enough evidence to charge Volkers again.

Ms Cunneen in her advice then to the DPP noted the likely testimony of Volkers' former students, in one instance singling out the depression suffered by one of his accusers, Simone Boyce.

Ms Cunneen said a doctor's assessment that Volkers' abuse triggered Ms Boyce's depression "seems, in view of the trivial nature (relative to the nature and duration of most sexual assaults which come before the courts) of the allegation, almost fanciful."

In relation to another victim, Julie Gilbert, the advice also questioned the mechanics of the sexual abuse through three layers of clothing, and whether 12-year-old-swimmers have breasts.

It was the only time Ms Cunneen has been asked to provide such advice, and the only time the then Queensland DPP Leanne Clare, now a judge, sought such advice.

The comments drew an angry reaction from Ms Gilbert after she was shown the advice while meeting with Ms Clare at the time.

"I was, and remain appalled, at the tone and content of Ms Cunneen's advice," Ms Gilbert told the recent Royal Commission into Institutional Responses to Child Sexual Abuse on the first day of hearings into the Volkers case.

"Some are matters that call for expert opinion ... whilst others are simply mis-statements or misconceptions of my evidence," Ms Gilbert said.

The purpose of the recent hearings in Sydney - the main focus of which was Volkers - was not to establish the truth of the allegations against him, said Gail Furness, counsel assisting the royal commission.

Rather its aim was to provide insights into the response of authorities to concerns and allegations about child sexual abuse, she said.

The commission spent four days probing witnesses about Ms Cunneen's advice, questioning her former boss Nicholas Cowdery, SC, and his successor as Director of Public Prosecutions Lloyd Babb.

Also in the stand was Judge Clare, and her former Deputy at the DPP, Paul Rutledge.

Ms Cunneen said she did not expect her advice to become public, arguing that it was written in a legal shorthand with the intention it would be viewed privately by her northern colleagues.

Late last week it was put to Ms Cunneen that her observations were personal and not a forecast of what a jury might think.

"Oh, not at all," Ms Cunneen said.

"Even a judge in the District Court could have said presenting an indictment for that case with that evidence - some of them would have asked us - asked a prosecutor, 'What are you doing with this case here, wasting the court's time?'.

"But that's not my view, not my view at all."

It's not the first time the Royal Commission has uncovered advice between lawyers that was expected to remain private.

In mid June, while examining the Marist Brothers' response to allegations of abuse, the commission uncovered a letter from a church lawyer advising the order to keep jailed pedophile John Chute out of the legal arena when he was released, because he was so honest he was likely to "dump on others".

"Trouble is, fundamentally, he has high honesty and integrity levels and all of my 'suggestions' about not dumping on others excessively go out the window pretty quickly once there is a conversation under way," the letter said.

As confronting as frank, private correspondence can be when it's made public, it is part and parcel of the legal profession, says director of professional programs at the University of South Australia's School of Law, Rachel Spencer.

Prosecutors are not going to pursue a case if it looks like they'll lose, she said.

"The nature of these discussions is very sensitive. But those kinds of discussions are discussions that have to be had, so as to make decisions about whether they have enough evidence to prosecute or not," she told AAP.

"The crown is what's called a model litigant, which means you can't just prosecute cases on a whim or because there might be public demand for it. You still have to have enough evidence because at the end of the day, the burden is on the prosecution to prove its case."

Such analysis will likely be cold comfort to Ms Gilbert, who told the Royal Commission she has felt like authorities have shut the door on her repeatedly.

"I just believe that I was abused.

"I hope it (the system) will change and will never be what we went through - that it listens to us, it supports us.

"It's not about trying to protect people just because they have a high-profile nature."

Scott Volkers is now coaching swimmers in Brazil.