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Volkers v The Queen

Volkers v The Queen

Case [2020] QDC 25 10 March 2020

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DISTRICT COURT OF QUEENSLAND

CITATION:

Volkers v R [2020] QDC 25

PARTIES:

SCOTT ALEXANDER VOLKERS
(applicant)

v

THE QUEEN
(respondent)

FILE NO/S:

236/2019

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

10 March, 2020

DELIVERED AT:

Brisbane

HEARING DATE:

22 January, 2020 and further written submissions of 28 and 31 January 2020

JUDGE:

Reid DCJ

ORDER:

The proceedings on indictment number 236 of 2019 be permanently stayed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – STAY OF PROCEEDINGS – ABUSE OF PROCESS – UNDUE DELAY - where the applicant was charged with a number of indecent treatment of children under 16 in 1980’s –applicant arrested in 2002, a no true bill entered in 2002- in 2004 one of the complainant’s sought leave under s 686 of the Criminal Code to commence private prosecution against the applicant – where the application was dismissed -where the ODPP decided to recommence the prosecution in 2017 – where applicant seeks a permanent stay of the committal proceedings against him on the grounds of abuse of process - whether a permanent stay should be granted – Human Rights Act

Human Rights Act (Qld), s 13, s 29(5)(b), s 31, s 32(2)(c).
Attorney-General Reference (No 2 of 2001) 2004 AC 72.
Barac v DPP [2006] QSC 421, and, on appeal [2009] 1 Qd R 104.

Connelly v DPP [1964] AC 1254.

Jago v District Court (NSW) (1989) 168 CLR 23.

Moevao v Department of Labour [1980] 1 NZLR 464.
Nona v The Queen (2013) 236 A Crim R 28.
R v Davis (1995) 81 A Crim R 156.
R v Mills (2011) 210 A Crim R 43.
Williams v Spautz (1992) 174 CLR 509.
Williamson v Trainor [1992] 2 Qd R 572.

Walton v Gardiner (1993) 177 CLR 378.

COUNSEL:

P R Boulten SC and T.R. Morgans for the applicant P J McCarthy QC for the respondent

SOLICITORS:

Fisher Dore for the applicant

The Office of the Director of Public Prosecutions for the respondent

Introduction

The applicant appeals for the permanent stay of an indictment charging him with 5 counts of indecent dealing with 2 complainants who were at the time of alleged offences under the age of 16. He seeks a permanent stay of the indictment.

Background

The applicant is a former Australian swimming coach. It is alleged that in 1984 and 1985, when he was about 26 years of age, he indecently dealt with a female swimmer then 13 years of age. It is also alleged that in 1987 he indecently dealt with another swimmer, then aged 12.

On 26 March 2002 he was arrested in relation to the alleged offending against the younger complainant. He was charged on 16 June 2002 with offending against the older complainant. His arrest was subject to extensive media coverage.

On 25 July 2002 he was committed to stand trial on seven counts of indecent dealing involving the two complainants.

Subsequently, in September 2002, the then director…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Volkers v The Queen

Details

AGLC: Volkers v The Queen [2020] QDC 25
Case: [2020] QDC 25
Decision Date: 10 March, 2020

CaseChat Overview and Summary

In the case of Volkers v The Queen, the applicant, Volkers, sought a permanent stay of committal proceedings against him on the grounds of alleged abuse of process due to undue delay. The applicant had originally been charged with several instances of indecent treatment of children under 16 in the 1980s. He was arrested in 2002, but a no true bill was entered in that year. In 2004, one of the complainants sought leave under section 686 of the Criminal Code to commence a private prosecution against the applicant, but the application was dismissed. Subsequently, the Office of the Director of Public Prosecutions (ODPP) decided to recommence the prosecution in 2017. The applicant then sought a permanent stay of the committal proceedings on the grounds that the delay in prosecuting him amounted to an abuse of process, invoking the Human Rights Act in his arguments.

The legal issues before the court involved determining whether the delay in prosecuting the applicant constituted an abuse of process warranting a permanent stay of proceedings. The court had to consider the length of the delay, the reasons for the delay, and whether the delay had prejudiced the applicant’s right to a fair trial. Additionally, the court had to balance the public interest in bringing the prosecution and the applicant's right to a fair trial under the Human Rights Act. The primary focus was on whether the delay was so significant that it rendered the prosecution an abuse of the court's process.

The court found that the undue delay in this case warranted a permanent stay of the proceedings. The court noted that the delay of over three decades was substantial and had significantly prejudiced the applicant's ability to mount a proper defence. The court considered that the reasons for the delay were not sufficiently justified and that the public interest in bringing the prosecution did not outweigh the prejudice to the applicant's right to a fair trial. Consequently, the court concluded that the delay amounted to an abuse of process, and a permanent stay of the committal proceedings was warranted.

The court ordered that the proceedings on indictment number 236 of 2019 be permanently stayed. This decision underscored the importance of timely prosecution and the protection of a defendant's right to a fair trial. The court's ruling emphasised that undue delays in criminal proceedings could result in a permanent stay, particularly when such delays cause substantial prejudice to the accused.

Orders

Orders of the court

The proceedings on indictment number 236 of 2019 be permanently stayed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Volkers v The Queen [2020] QDC 25

Most Recent Citation

Perpetual Trustee Company Limited v Masswealth Pty Ltd (No. 2) [2020] QDC 263

Cases citing this decision · 2 of 2 shown

Perpetual Trustee Company Limited v Masswealth Pty Ltd (No. 2)
[2020] QDC 263

…owalczuk v Accom Finance (2008) 77 NSWLR 205 Perpetual Trustee Company Limited v Masswealth Pty Ltd & ors [2020] QDC 25 COUNSEL: B A Sim ( sol ) for the Plaintiff Z Massis ( self-represented ) for the First and Second Defendant SOLICITORS: Gadens Lawyers for the Plaintiff First and Second Defendant self-represen…
R v Dawson
[2020] NSWSC 1221

…HCA 53 The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16 Tuckiar v The King (1934) 52 CLR 355; [1934] HCA 49 Volkers v R [2020] QDC 25 Category: Principal judgment Parties: Christopher Michael Dawson (Applicant/Accused) The Crown (Respondent) Representation: Counsel: P Boulten SC (Applicant/Accused) C Evers…

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Cases cited in this decision · 12 of 12 shown

Nona v The Queen; R v Nona
[2015] ACTCA 34

…4. Connelly v DPP [1964] AC 1254. Jago v District Court (NSW) (1989) 168 CLR 23. Moevao v Department of Labour [1980] 1 NZLR 464. Nona v The Queen (2013) 236 A Crim R 28. R v Davis (1995) 81 A Crim R 156. R v Mills (2011) 210 A Crim R 43. Williams v Spautz (1992) 174 CLR 509. Williamson v Trainor [1992] 2 Qd R 572. Walton…
R v Edwards
[2009] HCA 20 Para 1

…In R v Edwards (2009) 83 ALJR 717; 255 ALR 399 the pilot and first officer of a Qantas aircraft were charged with reckless operation of an aircraft contrary to the Civil Aviation Act . The Launceston Airport, where they landed and took off from, was unmanned. It was the responsibility of the two accused to act…
The Queen v Edwards
[2007] NZCA 387 Para 1

…In R v Edwards (2009) 83 ALJR 717; 255 ALR 399 the pilot and first officer of a Qantas aircraft were charged with reckless operation of an aircraft contrary to the Civil Aviation Act . The Launceston Airport, where they landed and took off from, was unmanned. It was the responsibility of the two accused to activate a…
Barac v Director of Public Prosecutions; Barac v Stirling
[2006] QSC 421 Para 1

…cannot fairly proceed. Her Honour held that a fair trial could be held in the circumstances of that case. That finding was not disputed on appeal. [2][2006] QSC 421, and, an appeal [2009] 1 Qd R 104.…
Gilbert v Volkers
[2004] QSC 436 Para 1

…004.[1] In doing so her Honour was significantly influenced by the extensive publicity about the matter and each party’s role in that publicity. [1][2004] QSC 436.…
Walton v Gardiner
[1993] HCA 77

…81 A Crim R 156. R v Mills (2011) 210 A Crim R 43. Williams v Spautz (1992) 174 CLR 509. Williamson v Trainor [1992] 2 Qd R 572. Walton v Gardiner (1993) 177 CLR 378. COUNSEL: P R Boulten SC and T.R. Morgans for the applicant P J McCarthy QC for the respondent SOLICITORS: Fisher Dore for the applicant The Office of the Di…
Williams v Spautz
[1992] HCA 34

…4. Nona v The Queen (2013) 236 A Crim R 28. R v Davis (1995) 81 A Crim R 156. R v Mills (2011) 210 A Crim R 43. Williams v Spautz (1992) 174 CLR 509. Williamson v Trainor [1992] 2 Qd R 572. Walton v Gardiner (1993) 177 CLR 378. COUNSEL: P R Boulten SC and T.R. Morgans for the applicant P J McCarthy QC for the respond…
Jago v District Court (NSW)
[1989] HCA 46

…Reference (No 2 of 2001) 2004 AC 72. Barac v DPP [2006] QSC 421, and, on appeal [2009] 1 Qd R 104. Connelly v DPP [1964] AC 1254. Jago v District Court (NSW) (1989) 168 CLR 23. Moevao v Department of Labour [1980] 1 NZLR 464. Nona v The Queen (2013) 236 A Crim R 28. R v Davis (1995) 81 A Crim R 156. R v Mills (2011) 210 A Crim R 43.…
[1980] 1 NZLR 464
[1980] 1 NZLR 464

…al [2009] 1 Qd R 104. Connelly v DPP [1964] AC 1254. Jago v District Court (NSW) (1989) 168 CLR 23. Moevao v Department of Labour [1980] 1 NZLR 464. Nona v The Queen (2013) 236 A Crim R 28. R v Davis (1995) 81 A Crim R 156. R v Mills (2011) 210 A Crim R 43. Williams v Spautz (1992) 174 CLR 509. Williamson v Trainor…
[1964] AC 1254
[1964] AC 1254 Para 1

…of the opinion that whilst a court had power to safeguard an accused from oppression, it did not extend to doing so by stopping a prosecution. [5][1964] AC 1254.…
[1992] 1 SCR 771
[1992] 1 SCR 771 Para 1

…ween these matters and those identified by Deane J as relevant to the exercise of the discretion referred to in Jago and set out by me earlier. [12][1992] 1 SCR 771.…
2004 AC 72
2004 AC 72

…granted – Human Rights Act Human Rights Act (Qld), s 13, s 29(5)(b), s 31, s 32(2)(c). Attorney-General Reference (No 2 of 2001) 2004 AC 72. Barac v DPP [2006] QSC 421, and, on appeal [2009] 1 Qd R 104. Connelly v DPP [1964] AC 1254. Jago v District Court (NSW) (1989) 168 CLR 23. Moevao v Department of Labou…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	Volkers v R [2020] QDC 25
PARTIES:	SCOTT ALEXANDER VOLKERS (applicant) v THE QUEEN (respondent)
FILE NO/S:	236/2019
DIVISION:	Criminal
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	10 March, 2020
DELIVERED AT:	Brisbane
HEARING DATE:	22 January, 2020 and further written submissions of 28 and 31 January 2020
JUDGE:	Reid DCJ
ORDER:	The proceedings on indictment number 236 of 2019 be permanently stayed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – STAY OF PROCEEDINGS – ABUSE OF PROCESS – UNDUE DELAY - where the applicant was charged with a number of indecent treatment of children under 16 in 1980’s –applicant arrested in 2002, a no true bill entered in 2002- in 2004 one of the complainant’s sought leave under s 686 of the Criminal Code to commence private prosecution against the applicant – where the application was dismissed -where the ODPP decided to recommence the prosecution in 2017 – where applicant seeks a permanent stay of the committal proceedings against him on the grounds of abuse of process - whether a permanent stay should be granted – Human Rights Act Human Rights Act (Qld), s 13, s 29(5)(b), s 31, s 32(2)(c). Attorney-General Reference (No 2 of 2001) 2004 AC 72. Barac v DPP [2006] QSC 421, and, on appeal [2009] 1 Qd R 104. Connelly v DPP [1964] AC 1254. Jago v District Court (NSW) (1989) 168 CLR 23. Moevao v Department of Labour [1980] 1 NZLR 464. Nona v The Queen (2013) 236 A Crim R 28. R v Davis (1995) 81 A Crim R 156. R v Mills (2011) 210 A Crim R 43. Williams v Spautz (1992) 174 CLR 509. Williamson v Trainor [1992] 2 Qd R 572. Walton v Gardiner (1993) 177 CLR 378.
COUNSEL:	P R Boulten SC and T.R. Morgans for the applicant P J McCarthy QC for the respondent
SOLICITORS:	Fisher Dore for the applicant The Office of the Director of Public Prosecutions for the respondent