Volkers v The Queen [2020] QDC 25

Date: 22 January 2020 and further written submissions of 28 and 31 January 2020
Court: District Court of Queensland
Judicial Officer: Reid DCJ
HRA Sections: ss 13, 29(5)(b), 31, 32(2)(c)
Rights Considered: Right to liberty and security of person, Rights in criminal proceedings: right to a trial without unreasonable delay; Right to a fair hearing
Other Legislation: N/A

Keywords: Interpretation; Proportionality; Fair trial; Prosecution

An application for a permanent stay of an indictment was brought by a former swimming coach on the basis of lack of fairness and oppression amounting to an abuse of process due to significant delay in proceedings. Reid DCJ found that the delay in prosecution of the accused since 2002 did amount to a breach of his right to a trial without unreasonable delay under the Human Rights Act 2019 (Qld).

This case concerned an application by former swimming coach Scott Volkers for a permanent stay of an indictment charging him with five counts of indecent dealing with two complainants who were at the time of alleged offences under the age of 16. The alleged offences occurred in the 1980s, and Mr. Volkers was originally charged in 2002.  These proceedings and a later prosecution failed. The proceedings at hand commenced in November 2017, and in November 2018 Mr. Volkers was committed to stand trial for these offences. Mr. Volkers’ counsel submitted two grounds for granting the stay: lack of fairness and oppression amounting to an abuse of process by the prosecuting authority. These grounds both relied on the significant delay in Mr. Volkers being prosecuted.

Counsel for Mr. Volkers provided written submissions to the effect that although prosecution began before the enactment of the Human Rights Act 2019 (Qld), the Office of the Department of Public Prosecutions (ODPP) was involved in the continuation of proceedings against Mr. Volkers and was a public entity within the meaning of the Human Rights Act 2019 (Qld).  Further, it was submitted that the ODPP had acted in a manner that breached ss 29(5)(b) and 32(2)(c) (the right to a trial without unreasonable delay) and s 31 (the right to a fair trial) of the Human Rights Act 2019 (Qld). Pursuant to section 13 of the Human Rights Act 2019 (Qld), the ODPP’s actions would only be compatible with human rights if the limitations placed on these rights were reasonable and demonstrably justifiable: at [99]-[100].

Reid DCJ held that in order to make a finding that Mr. Volkers’ right to a fair trial under section 31 of the Human Rights Act 2019 (Qld) had been breached, it would be necessary to find that the trial would be unfair at common law: at [101]. His Honour refused to grant a stay on the grounds the trial would be unfair, finding that the delay and destruction Mr. Volkers’ previous solicitors’ file which contained some key statements and evidence was not enough to render the trial unfair: at [88]-[89].

However, Reid DCJ held that the delay in prosecution of Mr. Volkers since 2002 did amount to a breach of his right to a trial without unreasonable delay under the Human Rights Act 2019 (Qld). His Honour stated that he needed to consider the proportionality issues raised in section 13 of the Human Rights Act 2019 (Qld) in determining the remedy to be imposed: at [104].

Reid DCJ concluded that, in the circumstances of this case, the appropriate remedy was to grant a permanent stay of proceedings ‘because to allow the prosecution to now proceed would be unduly oppressive and an abuse of process requiring the applicant to face, in effect, his third prosecution and in circumstances of widespread adverse publicity and significant adverse effects on the applicant’s ability to live and work’: at [113].

Visit the reported judgement: Volkers v The Queen [2020] QDC 25