Alternative Law Journal
The Volkers Case represents a very rare exercise of the discretion not to prosecute on trial a matter that has been committed for trial.
Queensland Council for Civil Liberties
In June 2003, the Queensl.!llld Crime and Misconduct Commission (CMC) released its report Seeking Justice: An Inquiry into the Handling of Sexual Offences by the Criminal Justice System (the 'Seeking Justice Report').
The catalyst for this Inquiry was the way in which the criminal case against high profile swimming coach, Mr Scott Volkers, had been handled by the Queensland Police Service (QPS) and the Queensland Office of the Director of Public Prosecutions (ODPP).
In March 2002, in a glare of media publicity, Volkers was arrested and charged with a number of sexual offences. On 25 July 2002, he was committed to stand trial on seven charges of indecent dealing with children under the age of 16, in relation to three 'complainants' (the name given to alleged victims of sexual offences) between 1984-1986. On 6 September, the accused's legal representatives met with ODPP officers and provided a written submission arguing that the prosecution be discontinued. The defence later provided the ODPP with a number of statements in support of that submission, which were 'subject to some disputed obligation not to investigate them'. On 18 September 2002, the ODPP notified the three complainants and counsel for the accused that the prosecution against Volkers would be discontinued. Despite the furore and the harm said to have been caused to his reputation, Mr Volkers went on to be appointed Head Coach of the Australian women's swimming team in 2002.
To determine whether any misconduct had occurred in this process, the conduct of the QPS investigation and the ODPP decision to drop the charges were the subject of a CMC inquiry under its complaints procedure. The Volkers Case: Examining the Conduct of the Police and Prosecution was released in March 2003.
Though this inquiry found no evidence of official misconduct, it did find that:
... the decision not to continue with the prosecution of any of the charges against Mr Volkers was unsatisfactory. This was reflected in the fact that there is room for doubt about the principal reasons that motivated the decision. The decision by Mr Rutledge [the Deputy DPP] to accept statements proffered with a view to persuading him that the charges could not be upheld, on the basis that use of the statements was restricted, was a mistake
In short, there were more defects than one would normally expect to find in an examination of a matter of this kind.
Following the release of that Report, the Queensland DPP announced that she would refer any new QPS brief of evidence relating to Volkers, if it contained 'significant new evidence', to an interstate prosecutor to decide whether new charges should be laid. Police had anticipated delivering such a new brief within days of the Report, and Australian Swimming announced that, in the interim, it had no intention of standing Mr Volkers down. Yet the matter has slipped into relative obscurity since that time and we await further developments.
This article considers the second CMC Report prompted by Volkers, the Seeking Justice Report, and also examines the broader implications of the issues raised and the areas of remaining concern.
Given public interest in the Volkers case and disquiet about its handling, the CMC undertook (in 2002) to conduct a general inquiry into the broader, systemic issues surrounding the criminal justice system's treatment of sexual offences alleged to have been committed against both adults and children. The specific terms of reference on the Seeking Justice inquiry were:
1. the training, expertise and supervision of police officers investigating sexual offences
2. the adequacy of existing guidelines and procedures for the initiation and discontinuance of the prosecution of sexual offenders by police and the ODPP
3. the appropriateness of, and the circumstances in which, the publication of identifying information about a person charged with a sexual offence should be suppressed.
A Discussion Paper was released in October 2002. The CMC called for submissions (and received over 70), while CMC research staff also spoke to 75 individuals about their experiences with the criminal justice system. Two days of oral hearings concluded the inquiry in late November 2002.
The 2003 Seeking Justice Report is the most recent in a long line of reviews, inquiries and studies conducted into sexual violence against women and children in Queensland. Since 1999, ten substantial reports have been produced (five in 2000 alone). And at the time of writing, another substantial CMC inquiry is underway, this time into allegations of abuse committed against children in the Queensland foster care system. The government's answer to most of these reports is a fresh batch of legislative quick fixes, the piecemeal and often overlapping nature of which militate against an integrated and systematic response. Recommendations that funding be increased to ensure the adequate resourcing of those who have responsibilities under Acts or agency guidelines to fulfil their obligations (or supply necessary services or enhance interagency coordination mechanisms) are usually ignored. The current foster care inquiry is again highlighting these issues.
The community has a right to expect that allegations of sexual abuse will be handled with efficacy, objectivity and sensitivity. More than in any other area of the criminal law, discriminatory beliefs, cultural mythologies, vocal lobby groups and ill-informed stereotypes impact on the treatment of sexual offences from the earliest point and at every stage- from the investigation, throughout the conduct of the prosecution and into the trial and sentencing process.
Significant formal gains have been delivered to complainants by two decades of sexual offence law reform (although Queensland was the last jurisdiction to reform in 2000). Yet research, particularly that conducted in NSW and Victoria, has shown that reform of substantive and procedural law has not necessarily translated into real change for victims and, in many instances, has been subverted by a legal culture that tends to discredit and disbelieve women and children who allege sexual abuse. It is not hard to find contemporary evidence of this discriminatory legal culture: the Queensland Bar Association's submission to the Taskforce on Women and the Criminal Code (the 'Women's Taskforce') stated as a 'recognised fact' that 'an allegation of rape is easy to fabricate and difficult to refute'.
As Patricia Easteal says:
It is no surprise then that if viewed from the perspective of the victim, reform has not significantly altered the imbalance in the scales of justice as intended. It would seem that the interests of the defendant to a 'fair trial' continue to be weighted more heavily and the question of victim credibility continues to loom over the courts. 
It is a matter of concern and disappointment therefore, that an inquiry such as the Seeking Justice inquiry should be precipitated by the sensitivities surrounding one documented instance when a famous defendant had his identity reported. Historically, the balance has been (and, with justification, many would say is still) weighted heavily in favour of alleged sexual offenders. Research suggests that, on a regular basis, the rights and sensitivities of complainants are routinely abused and that they experience great difficulty having their stories believed and treated with dignity and fairness. In 2000; the Queensland Women’s Taskforce found after extensive investigation that 'women's experiences of the criminal justice system, whether as victims or accused persons, were generally negative and alienating'. A disproportionately large number of sexual offences are discontinued or withdrawn after charges are laid (between 20% and 40%) compared to other offence types. It is to be regretted that the system has not sprung into action to turn this statistic around as it did post-Volkers on the publication of names issue. Pre-Volkers, high discontinuance rates had already been identified as a matter that required further research; it might be considered quite insensitive to complainants that such research is not more vigorously pursued at the expense, say, of the third term of reference in the Seeking Justice Inquiry.
Much of the reform work of the past 20 years has been directed at overcoming fears of a secondary victimisation of complainants at the hands of the criminal justice system. While the efficacy of the reforms might be in doubt (see above for examples of professional and systemic resistance), against a more accepting background of cultural and societal change, many formal legislative steps have been taken in a genuine attempt to encourage complainants to feel safe to report sexual offences, without undue fear of further degradation by the legal process.
In this context, there is a concern that an Inquiry such as Seeking Justice, when it focuses well-resourced attention on an issue such as the appropriateness of publishing the defendant's identity in a sexual offence matter, even accepting the validity of such an investigation, runs the very real risk of again discouraging complainants from reporting sexual offences perpetrated against them. As Easteal warns, the system falls into the trap of qualifying the gains that have been made by again prioritising concerns regarding fair trial and rights for accused persons. For vacillating complainants, this perpetuates their perception of the criminal justice system as one where the balancing of competing rights will always be resolved in favour of an accused over a complainant.
Despite these reservations regarding the impetus for the Inquiry and the third term of reference, the Seeking Justice Report nevertheless makes 23 valuable recommendations for action (and one final recommendation for review in two years time), based on a comprehensive collection of research data and investigation into systemic issues.
The Report is essentially in two parts:
• Part 1 (Chapters 1-5) pulls together all the recent research material and data around these issues (for example, on how disclosure of abuse occurs, interviewing techniques, current QPS and ODPP practice). This collection alone is a most welcome contribution to informing and advancing the debate in Queensland. The data collected on progression rates will be discussed briefly below.
• Part2 (Chapters 6-11) contains the substantive discussion of the terms of reference (see further below) and addresses the major issues raised in the submissions to the CMC.
One of the most valuable outcomes of the Seeking Justice Report is the rich data that have been collected, particularly the 'drilling down' into QPS and ODPP data.
As my colleagues (Tamara Walsh and Michael Barnes) and I recorded in our submission to this Inquiry, there has long been abundant evidence that sexual offences are dramatically under-reported. The Australian Bureau of Statistics (ABS) found that, in 1998, only 32.6% of sexual assault victims in Australia reported the offence to police.
This figure represents an improvement on 1993, when as few as 25% of victims reported offences, and on 1996 when only 28% were reported. According to data available from the Queensland Office of Economic and Statistical Research (OESR), the reporting rates in Queensland are even lower than for Australia as a whole. For 2000, the OESR found that only 18.9% of sexual assault victims reported the offence to Queensland police.
As is true also for the US and the UK, reporting rates in Australia vary depending on the relationship between victim and offender. Reporting rates are lowest (approximately 5-10%) when the offender is the current partner or boyfriend of the victim, and highest when the offender is a stranger (approximately 35%).
The Seeking Justice Report provides a current figure to add to the 32.6% (ABS) or 18.9% (OESR) of complainants who do report: in Queensland on average, 6500 allegations are reported to the police annually, the majority relating to offences perpetrated against children under 16 (about 58%) and a substantial proportion (about 20%) taking place more than five years before being reported.
Of the offences reported to police, QPS data for 1999-2002 reveal that about two-thirds of reported sexual offences proceed to committal, while about 3% are dealt with by caution or community conferencing (for example, where the offender is a child under 10 years of age) To put this another way, 37% of matters do not proceed beyond the reporting stage (because they have lapsed (1%), are withdrawn (8%), are not solved (18%) or are 'not substantiated' (10%)). The CMC noted that the QPS figures collected here have been fairly consistent for about a decade now.
Of the 63% of matters reported to police that proceed to committal, for the period 1994 to mid-2001, data made available to the CMC by the OESR reveal that: 
• 64% are committed to the Supreme or District Courts for trial or sentence, while a further 27% are withdrawn or dismissed. The remaining 9% of accused were found guilty in the Magistrates Courts (with only 1% of those being imprisoned)
• about 35% of matters committed to the higher courts are discontinued by the prosecution
• when finally dealt with by a higher court, 8% of accused were found not guilty, 9% were discharged and 83% were found guilty (either by trial or plea).
To summarise in stark terms, these data mean that:
• less than one-third of offences are reported
• of those reported, a further one-third do not proceed to committal
• of those that are committed for trial, more than another third are dismissed or withdrawn by the prosecution prior to reaching a higher court.
The CMC concludes in masterful understatement that 'the successful prosecution of a sexual offence in Queensland is likely to be limited to a relatively small proportion of reported offences overall'; though this part of the Report also points out that the Queensland position is 'not dissimilar' to that interstate or internationally. Chapter 5 concludes on a sober note:
The message taken by victims of abuse who review this data might, therefore, be that the stress of enduring the complexities and difficulties of the criminal justice system by reporting such an offence may not be warranted, given the limited likelihood of achieving a conviction. Thus, under-reporting of offences may continue. Conversely, the message to 'would-be offenders' might be that the likelihood of being caught and convicted of a sexual offence appears slim. Neither response is likely to lead to the prevention of sexual abuse nor enhance the perceptions of the public that the criminal justice system is little more than a legal process, rather than a 'justice' system.
The CMC recognised that the investigation of sexual offences is 'complex and sensitive' and that there had been significant improvements in the QPS, especially the creation of specialist sexual offence units in Brisbane. Indicative of QPS cultural change was that many of the concerns raised with the CMC came from police themselves wanting to improve their performance. The CMC made a number of Recommendations (1-10, Chapter 7) regarding this first term of reference, including:
• improvements in specialist training for relevant police including supervisors
• enhanced supervision and rewriting of the QPS Operational Procedures Manual to set out clearly the three decision-making processes relevant to police prosecution
(i) the initial decision to lay charges
(ii) summary prosecutions
(iii) the prosecution of committal hearings for indict
• review of statewide and regional patterns of response by the QPS to sexual offences (especially in the Far Northern Region)
• enhanced communication and liaison strategies between the QPS and the ODPP to improve decision-making processes.
Given the impetus for the Inquiry, the ODPP's decision making processes were subjected to considerable scrutiny. The CMC particularly noted that:
Significant criticism was levelled at the ODPP for many issues that were not necessarily resource-based. Perceptions of poor management of cases, poor communication skills and inappropriate attitudes towards complainants, poor documentation of communication with the defence, difficulties with the QPS and a lack of transparency in the decision-making process overall were clearly issues of great concern to many.
In response to these concerns, the CMC recommended (Recommendations 11-18, Chapter 8) that:
• all ODPP legal staff and victim liaison officers (VLOs) receive sexual offence awareness training in critical areas such as the nature and extent of sexual abuse, child development, the disclosure and reporting of abuse, interviewing techniques and historic cases
• written policies and protocols be developed to facilitate formal communication with all stakeholders (QPS, defence and complainant) and to ensure transparency of decision making (including the preparation of written reasons for the discontinuance of cases)
• the role and function of VLOs be reviewed to enhance victim support
• a complaints-handling process be implemented by the ODPP.
In a rap on the knuckles for both the QPS and the ODPP, the CMC specifically recommended that the unhelpful bickering between them should cease:
According to many submissions to the Inquiry there may have been some antagonism between the two organisations, which may have had a detrimental effect on shared procedures, and on complainants and accused alike. A longer-term view would also suggest that this may be detrimental to the willingness of victims of abuse to report their experiences. The Commission strongly recommends, therefore, that the two agencies make every effort to overcome these difficulties.
As discussed above, the third term of reference directed specific and detailed attention to the issue of publishing an alleged sexual offender's identity once charged, the argument being that a defendant will suffer 'irreparable harm' if publicly named. This anonymity applies to adult offenders only in sex offence cases: on charge for any other offence in Queensland (for example, murder, torture, kidnapping) no blanket protection is available.
Essentially, the CMC recommended that the status quo on this issue be maintained, with some minor modifications to provide further protection to a defendant (Recommendations 11-18, Chapter 8). Specifically, the CMC recommended that existing s 10(3)(b) of the Criminal Law (Sexual Offences) Act 1978 (Qld) (CL(SO) Act) be amended in two ways:
• to backdate the prohibition against publication to include the period before a person is charged (when a person is under police investigation)
• to extend the prohibition to all (cf 'prescribed' only) major sexual offences (modelled on the definition of 'sexual offence' in the Evidence Act 1929 (SA) s 4).
While the CMC declined to extend the existing prohibition in any way (for example, to some later time such as conviction), it also did not countenance any abrogation of the protection along the lines of most Australian jurisdictions, where there is no prohibition on identifying the defendant, except insofar as that may identify the complainant. In the UK, the special protection was abolished in 1988 following a 1984 recommendation of the Criminal Law Revision Committee.
While implementation of these recommendations should assist to resolve some of the systemic issues raised, there are three other issues identified by the CMC as relevant but which it considered were beyond the scope of its Inquiry and thus remain unresolved. They will be addressed briefly now.
A recurring theme in the Report's commentary, which is conspicuously absent in the recommendations as framed, is the endemic inadequacy of money and resources. Fraught issues about insufficient funding, raised by many submissions, including government departments and the judiciary (especially regarding victim support, timeliness of response etc), were neatly sidestepped by the CMC's assurance that the implementation of the various recommendations (for example, on management, policy, procedure and front ending) would overcome many of these concerns 'without major funding increases'. Alternatively, funding consequences were ignored: for example, in response to a number of submissions suggesting additional support be provided by the QPS to sexual abuse victims, the CMC merely 'encourages the QPS to consider the allocation of appropriately trained support staff within the specialist sexual offence squads' [emphasis added].
The vexed issues surrounding the conduct of committal proceedings were discussed but not resolved, especially:
• whether the test for committal should remain as the relatively low level 'prima facie' test or whether the stricter 'reasonable prospects test' should apply (as in most other states and territories and as applied by the ODPPs)
• costs issues
• whether committals should be retained at all, excluded in sexual offences, or retained in some modified form
• whether the police or the ODPP should conduct committals.
Although the importance of respecting and protecting victims of crime has been codified in Queensland in the Criminal Offence Victims Act 1995 (Qld) (COVA), the data collected in this Report indicates that little has changed for the better for complainants. As with committals, the CMC's response is that 'these are issues that the government may need to examine and address in the longer term'.
COVA was specifically enacted to 'advance the interests of victims of crime by stating some fundamental principles of justice that should be observed in dealings with [them]' (COVA s 4(2)). Many of the problems with COVA were identified by the Women’ s Taskforce in 2000: for example, that the principles are not legally enforceable; that some do not apply until the victim makes a request for information; and that government agencies are not properly funded to fulfil their COVA responsibilities. The CMC repeated these concerns and noted that none of the Women’s Taskforce recommendations had been acted upon.
The CMC identified that the Queensland legislative response to sexual abuse has been 'complex'. With respect, for a jurisdiction whose criminal law has been codified since the Criminal Code Act 1899 (Qld) commenced on 1 January 1901, the current situation is almost untenable: certainly the codification of sexual offences has been completely undermined in recent years.
A Code is 'legislation which attempts to "cover the field" of a particular area of law and which is the primary source of law'. In particular, it should be systematic and orderly so that codified law is 'stated with a consistent terminology, form[ing] an interlocking, integrated body, revealing its own plan and containing its own methodology'. In Queensland, however, as the findings of each new inquiry are incorporated into the legislative maze, the criminal justice 'system' becomes increasingly less systematic and ordered over time, and its various facets -even its lynchpins, the investigative and prosecuting arms - become less co-ordinated and less collaborative.
For example, while the major sexual offences are proscribed in the Criminal Code (Qld), and sentencing is dealt with in the Penalties and Sentences Act 1992 (Qld) (PSA), both of these Acts have been substantially amended many times since 1997 (often the same sections are amended), with sexual offence provisions modified more than any other offence type. Relevant evidentiary provisions are included in two further Acts: the offence-specific CL(SO) Act (which was criticised by the CMC) and the general Evidence Act 1977 (Qld).
In terms of the law's transparency-one of the alleged virtues of codification is that the law is easy to find and understand - there are now nine separate pieces of substantive legislation dealing with sexual offences against adults and children. Exacerbating the proliferation of legislation is the increasing tendency of government to legislate in haste and then amend at will, without consolidating the various parts into one coherent whole. For example, in 2003 alone (by June), three separate pieces of legislation (two commenced, one not) totalling 149 pages have been enacted, two of them amending 17 relevant Acts between them.
Take the legislative regime for sentencing sex offenders as a specific example. Four different Acts 'cover the field':
• PSA Part 10 makes provision for indefinite detention for certain sex offences as part of the sentencing process.
• The recently amended Criminal Law Amendment Act 1945 (Qld)-a substantive piece of legislation in its own right despite its misleading title, which interacts with the Corrective Services Act 2000 (Qld)-also provides for, among other things, indeterminate detention of sex offenders incapable of controlling their sexual instincts while they are prisoners currently serving their sentence.
• The new Act on the block is the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), which commenced operation on 6 June 2003. The Explanatory Notes advise that the Act is designed to address 'growing community concern about the unsupervised release of convicted sex offenders who are not rehabilitated back into the community'. The Act enables the court to order 'the post-sentence preventive detention or supervision of persons serving sentences for serious sexual offences who pose a serious danger to the community upon release from prison'. An application for a 'continuing detention order' was made under this Act on 17 June 2003. In A-G (Qld) v Fardon, the Queensland Court of Appeal held that the Act was constitutionally valid. The Act's constitutionality will be settled by the High Court.
The fallout from the Volkers saga in Queensland, whatever the merits of the actual case, has been expensive and disappointing. It is not unreasonable to suggest that many of the systemic barriers that prevent complainants from reporting have been validated by what has occurred. Complainants are right to:
• have a 'lack of faith in the system (it doesn't do any good to report)'
• 'fear secondary victimisation'
• trust in the strong community perception 'that the legal system treats victims/survivors badly and that there are considerable difficulties for victims in approaching authorities'.
The message to 21st century complainants in Queensland is disturbing. It is entirely possible that an 'unsatisfactory' decision to discontinue a prosecution can be made where there is 'room for doubt about the principal reasons that motivated the decision', on the basis of a deal between lawyers that involved 'obvious dangers in permitting lawyers to submit statements to the prosecution [in the way that occurred here]', without reference to the complainants. Then, even more distressingly for the complainants, to ensure that no future defendant is so poorly served by the system, all the resources of the state spring into action to examine the appropriateness of naming a defendant charged with a sexual offence.
How this example of legal process can be said to enhance community confidence in the existence of a 'justice' system that treats complainants with 'courtesy, compassion and respect for personal dignity' (COVA s 6), is beyond imagining. As Julie Gilbert, one of the complainants in the Volkers case, said on the ABC television program Australian Story in February 2003:
Why would I put myself through this if it didn’t happen? ... It does take a toll on you, and I think sometimes it's easier to push it away so you don't have to deal with it. And I've done that for many, many years I've not dealt with it. But this time in my life, I have enough strength, I have enough support to continue to fight and to continue to find justice, and for someone to give me an explanation as to why it didn't go to trial. [emphasis added]
[*] Sally Kift teaches law at the Queensland University of Technology.
© 2003 Sally Kift
 Qld Council for Civil Liberties, Submission to Queensland Crime and Misconduct Commission, 20 November 2002,5.
 CMC, Seeking Justice Report (2003) <http://www.cmc.qld.gov.au/library/CMCWEBSITE/SeekingJustice.pdf.> .
 Ibid, 169.
 CMC, The Volkers Case: Examining the Conduct of the Police and Prosecution (2003) <http://www.cmc.qld.gov.au/li
 CMC, Seeking Justice Report, above n 2, 169.
 G Roberts, 'Swimming Body Plans no Action against Volkers' The Australian, 4 April 2003.
 See, eg, R v Seaboyer; R v Gayme(1991) 83 DLR (4th) 193 especially at 208-209 and the recent treatment of these matters in P Easteal, Less the Equal -Women and the Australian Legal System (2001).
 See, eg, discussion in P Easteal (ed), Bal ancing the Scales: Rape, Law Reform and Australian Culture (1998).
 Office of Women's Policy, Report of the Women and the Criminal Code (March 2000) 213 ('Taskforce Report'). <http://www.qldwoman.qld.gov.aulpubli-cations/taskforce/main.html> .
Easteal, above n 7, 135.
 Taskforce Report, above n 9, ii.
 CMC, The Handling of Sexua/ Offence Matters by the Criminal Justice System: Discussion Paper (2002), 4.
 Easteal, above n 7, 135.
 ABS, 'Crime Justice - Special Article: Crime and Safety', Year Book Australia 2002 <http://www.abs.gov.au/Ausstats/abs@.nsf/Lookup/E95615F039483745C A2569DE0025631D> .
 OESR, Queensland Crime Victimisation Survey 2000.
 OESR, 'Violence in the Family', Crime Statistics Bulletin No 1, April 1998; Easteal, above n 7, 120.
 CMC, above n 2, 54-5.
 Ibid, 57-8.
 Ibid, 128.
 Ibid, XX.
Juvenile offenders (under 17) are generally protected for all offences in all Australian states and territories.
Crimes Act 1900 (NSW) s 578A(2); Judicial Proceedings Reports Act 1958 (Vic) s 4(1A), Evidence Act 1929 (WA) s 36C(6); Evidence Act 2001 (Tas) s 194K; Evidence Act 1971 (ACT) s 76E.
 CMC, above n 2, 73.
 Ibid, xix.
 Ibid, 72.
 Taskforce Report, above n 9, 71-73.
 Parliament of Victoria Law Reform Committee, Inquiry into Administration of Justice Offences, Discussion Paper, August 2003, 4, available at <http://www.parliament.vic.gov.aullawreform/> .
 M R Goode, 'Codification of the Australian Criminal Law Journal S, 5.
 A-G v Fardon  QSC 331 per Atkinson J at . Emphasis added.
 A-G v Fardon  QCA 416.
 Taskforce Report, above n 9, 215-6.
 CMC, above n 2, 169.