The Iraq war got in the way of decent introspection about the Queensland Crime and Misconduct’s findings into the DPP’s handling of the Scott Volkers’ case.
Now that the global situation has stabilised we can seize the moment to look more closely at just what the CMC unravelled.
Volkers (right) is the head coach of the Australian womens swimming team. Last September the Queensland DPP dropped seven charges against him in relation to indecent dealings of girls. The alleged offences took place 20 years ago. There way the Office of the DPP handled the whole thing ended up in the lap of the CMC after quite a bit of howling by some of the alleged victims and the Opposition.
Volkers is certainly politically well connected. He’s an old friend of Attorney General Welford and since the report was finalised it has emerged that he was sufficiently chummy with the Minister for Industrial Relations, Gordon Nuttall, for commiserating phone calls to be made at the time the police charged him.
Happily, the CMC made no finding of misconduct by the police or the Office of the DPP and no finding that Attorney General Welford had interfered in the case. Yet the whole thing turned out to be a bit of a stinker. The CMC report said:
“Mr Rutledge [the Deputy DPP], and to a lesser extent Ms Clare [the DPP], can be justly criticised for the way in which they went about their task.”
Indeed, the process leading to the decision to drop the charges against Volkers was extraordinary, or as the report said “unsatisfactory”. It found that Deputy DPP Paul Rutledge made a “mistake” in giving an undertaking to Volkers’ defence lawyers.
It added that Rutledge made four other lesser mistakes, including placing too much weight on evidence that was damaging to the credibility of one of the complainants and giving too little analysis to the prospects of successful prosecution of some of the alleged offences.
The undertaking was a real corker. It was given by Rutledge to Volkers’ lawyers, barrister Michael Byrne and solicitor Peter Shields. The fact that the parties to it ultimately disagreed about what had been agreed added to its deeply problematic nature.
The undertaking arose in the context of a meeting at which the defence team was presenting its written submission that the DPP should drop the case. The defence was relying in part on written statements from witnesses that were not provided at the meeting. Rutledge later was allowed to view these statements but only after he gave an undertaking to limit the extent to which they were used.
The undertaking was not put in writing. Rutledge thought that he undertook not to “track down the witnesses and seek to interview them” and that the arresting officer could not have access to the statements but other police officers could have access.
His understanding was that the undertaking did not prohibit the ODPP from making further inquiries.
Byrne and Shields believed that the undertaking was that the witness statements were for the ODPP’s eyes only, and that they wouldn’t be used to prepare witnesses or complainants by disclosing the statements to them.
The CMC report said it would have been wrong of the Deputy DPP to have received the statements under the terms of the undertaking asserted by Byrnes and Shields. It said that giving an undertaking of this kind could amount to a breach of the trust placed in the Deputy DPP if it was given for an improper or dishonest purpose.
After receiving the statements from the defence team, Rutledge questioned Julie Gilbert, one of the complainants. When Byrne heard of this he threatened to seek a stay of proceedings from the court on the basis that it amounted to a breach of the undertaking.
Rutledge then decided to call off any further inquiries based on the statements because, he said, he did not want to expose the DPP to an unnecessary stay argument that would stop the case proceeding to trial.
The DPP argued that the content of the statements had very little to do with the ultimate decision to drop the charges against Volkers. The CMC found it hard to accept that the statements had no influence on the final decision and that in fact this threat did put pressure on the Office of the DPP.
The CMC concluded that Rutledge did not have a dishonest purpose in providing the undertaking, that it was a mistake rather than misconduct. The report said it was impossible to determine the exact nature of the undertaking because of the misunderstanding between the parties.
The CMC report reiterated that undertakings that prevent statements from being investigated should never be given and stressed the importance of giving undertakings in writing and signed by both parties.
Despite all that, DPP Clare said that she stands by the original decision not to proceed with the charges against Volkers. Police are finalising a new brief of evidence to submit to the DPP in an attempt to reinstate the charges against Volkers.
After a period of reflection, Clare has agreed to refer the brief to a prosecutor outside Queensland if it contains “significant new evidence”. She said that while she had maintained full confidence in her office she would outsource further assessment in order to maintain public confidence in the process.
How awfully proper.