New South Wales’ top prosecutor, Sally Dowling SC, has been granted permission by the NSW Supreme Court to pursue her effort to have a senior judge removed from a historical sexual offences trial due to alleged apprehended bias. This ruling marks a significant development in the ongoing conflict between Dowling, the Director of Public Prosecutions, and District Court Judge Penelope Wass.
The decision follows a review by the NSW Court of Appeal, which considered whether a submission made by Judge Wass to a parliamentary committee—where she criticized Dowling—could be used to support the recusal application. The court had to determine if the centuries-old Bill of Rights, which ensures parliamentary freedom of speech, would prevent the use of Wass’s submission in this context.
The court ruled that the Bill of Rights does not “prevent the director from making (and the district court from determining) a recusal application on the ground of apprehended bias”.
However, the court clarified that this decision does not imply any judgment on the merits of the application for Judge Wass to disqualify herself. The recusal application remains unresolved.
Background of the Dispute
The conflict escalated in December when Judge Wass submitted a 68-page document to a parliamentary inquiry, criticizing Dowling and suggesting that parliament should consider her removal as the state’s top prosecutor. Wass accused Dowling of orchestrating a leak concerning an Indigenous child who performed a “welcome to country statement” before being sentenced for serious crimes. The details were allegedly shared with Sydney radio station 2GB, although the child’s name was not broadcast.
Wass claimed that the leak breached prohibitions on naming child defendants in criminal proceedings and alleged that Dowling was directly involved. Dowling, however, denied personal involvement, attributing the leak to the ODPP’s media unit, and accused Wass of harboring a “personal grievance” against her and the ODPP.
Legal and Parliamentary Implications
The NSW Supreme Court’s ruling emphasized the necessity for courts to remain free from bias or the perception thereof, as mandated by the nation’s constitution. It also highlighted the unusual nature of a sitting judicial officer making a submission to a parliamentary committee about a litigant’s conduct.
The court described the submission as “extraordinary” and noted that judges “need to refrain from making statements which are capable of giving rise to a perception that the judge may not deal with matters before that judge impartially”.
Judge Wass is among several district court judges who have criticized the ODPP’s handling of sexual assault prosecutions under Dowling’s leadership. This ongoing scrutiny has sparked broader discussions about the transparency and conduct of judicial officers in New South Wales.
Future Considerations
Dowling’s decision to utilize a typically privileged document for the recusal application has drawn attention from the parliament’s privileges committee. This committee is examining whether the ODPP breached parliamentary rules, with concerns about a potential “chilling effect” on future witnesses.
The court’s ruling does not directly affect this parliamentary examination, leaving questions about the broader implications for judicial conduct and parliamentary interactions. As the legal proceedings continue, the case underscores the delicate balance between judicial independence and accountability, a topic likely to resonate in legal circles and beyond.
As the situation unfolds, stakeholders in the legal community and the public will be closely monitoring the outcomes of both the recusal application and the parliamentary inquiry. The case serves as a reminder of the complex interplay between legal processes and the principles of fairness and impartiality.
