"Most regrettable": a live feed image as Margaret Cunneen gives evidence at the royal commission.
Crown Prosecutor Margaret Cunneen, SC, has led countless scathing courtroom examinations over a career spanning more than 30 years.
But on Thursday the experienced silk was herself feeling the heat, as the Royal Commission Into Institutional Responses to Child Sexual Abuse examined her role in the decision not to prosecute the former Australian swimming coach Scott Volkers.
During a tense three hours of questioning that Ms Cunneen's own barrister at one point suggested had "the whiff of a personal attack", the prosecutor was grilled on why she told Queensland authorities there was "no reasonable prospect" of gaining a conviction against Mr Volkers.
Sceptical: Margaret Cunneen, SC, outside the hearing. Photo: AAP
In this advice, Ms Cunneen expressed scepticism about a doctor’s finding that one of Mr Volkers’ alleged victims was suffering from major depression stemming from an alleged assault 14 years before, in which he touched her breasts.
“Dr Cotter’s evidence seems, in view of the trivial nature [relative to the nature and duration of most sexual assaults which come before courts] of the allegations, almost fanciful,” Ms Cunneen said in the advice.
"It is legitimate to consider whether 12-year-old swimmers even had breasts," her advice also stated.
On Thursday, Ms Cunneen categorically denied that this represented her own personal opinion.
“That is my opinion of the view a jury would form, given the usual robust submissions by defence counsel,” Ms Cunneen said.
“Unfortunately, a prurient couple of paragraphs would be read from it [her advice] to these ladies, who were caused distress, which is most regrettable, because my life’s work has been to try to make this whole process for victims easier and more pleasant …"
The prosecutor, who chaired last year's special commission of inquiry into child sex abuse in Newcastle, was also grilled extensively on the doubt she expressed about the possibility that a 13-year-old girl wearing tight swimmers could experience an orgasm while being sexually abused.
She repeatedly referred to the need to convince a jury beyond reasonable doubt, drawing a stern response from the Chair of the Commission, Justice Peter McClellan.
“Where is the balance, Ms Cunneen?" he asked.
The following exchange also took place.
Ms Cunneen: “I’ve seen thousands of victims, too. I, too, was sitting in a commission of inquiry listening to very large numbers of victims saying the same."
Justice McClellan: “Sorry, large numbers of victims in an inquiry?"
Cunneen: “Yes, in the inquiry that I conducted, your Honour.
McClellan: “There were large numbers up there, were there?”
Ms Cunneen was also asked why she had advised that proceeding with the Volkers prosecution could harm the general cause of prosecuting sexual offenders.
She replied that she had "a very personal interest over many years of hoping that the message got out to the community that the cases that we were prosecuting are strongly backed by the evidence, that we were putting them up because we really expected to get a conviction …"
"It was important, especially in those days … that it didn’t come across as zealous prosecutors putting up very old, relatively minor cases that then are not guilty, and everyone would say 'Oh, they prosecuted that Volkers, he wasn’t guilty, those girls were lying'."
The examination will continue on Friday.