A prominent NSW prosecutor who described allegations against swim coach Scott Volkers as "relatively trivial" has defended her decade-old recommendation not to recharge him.
Margaret Cunneen SC was asked in late 2003 to advise the Queensland Director of Public Prosecutions on whether there was sufficient new evidence to justify recharging Mr Volkers for sex offences against former students.
One of Mr Volkers' alleged victims, Julie Gilbert, this week criticised Ms Cunneen's advice to her Queensland counterpart - in particular on the grounds there were factors likely to affect the credibility of Mr Volkers accusers.
"No, I don't resile from it, of course bearing in mind it was 2004 and there may be some considerations in relation to juries being more amenable in 2014," Ms Cunneen told the Royal Commission into Institutional Responses to Child Sexual Abuse on Thursday.
The commission is examining how sport and government authorities responded to the 2002 allegations against Mr Volkers.
In the case of Ms Gilbert, the advice questioned the likelihood of a 13-year-old girl experiencing orgasm while being assaulted while wearing three layers of clothing.
"Never am I suggesting the preposterous idea that it's impossible," Ms Cunneen said.
"It's the unlikelihood, and that's what we're dealing with (with) juries, not possibilities."
The advice, citing a statement from a psychiatric doctor, also said accusations of inappropriate conduct by another of Mr Volkers' accusers, Simone Boyce, "seems, in view of the trivial nature ... of the allegation, almost fanciful."
The use of "trivial" refers to the nature and length of the alleged assaults compared with other sexual assaults that come before the courts, Ms Cunneen said.
Counsel assisting Gail Furness asked Ms Cunneen if she considered the offences to be "relatively trivial" compared with other cases she had dealt with.
"I certainly don't wish to hurt any person who has suffered from those assaults by saying that, but that's the human side of me," Ms Cunneen said.
"Being a barrister, one must follow the law, and the law is that the more serious cases are attended by greater penalties, and therefore they're regarded as more serious on the criminal spectrum."
On Thursday, she told the commission that it was not her personal view the alleged offences were "trivial" but rather the view a jury might take.
Ms Cunneen told the commission she never expected the advice would be made known and regretted her advice caused the women such distress.
"My life's work has been to try and make the whole process for victims easier and more pleasant," Ms Cunneen said.
The hearing in Sydney continues on Friday.
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