Dramatic escalation in bitter feud between judge and top prosecutor

The state’s top prosecutor is facing a potential inquiry over an allegation of contempt of parliament amid an explosive row with a District Court judge.

A long-running feud between the Director of Public Prosecutions, Sally Dowling, SC, and District Court Judge Penelope Wass spilled into NSW parliament last week after Wass made a submission to an inquiry that called for Dowling’s potential removal from office.

In response, Dowling’s office applied this week for Wass to recuse herself from a criminal trial and foreshadowed further applications would be made in other trials.

“The application is brought on the basis of apprehended bias,” the Office of the Director of Public Prosecutions (ODPP) said in a statement on Friday. This is not an allegation of actual bias on Wass’ part, but of the appearance of it.

The chair of the upper house inquiry that received Wass’ submission, the Shooters, Fishers and Farmers Party’s Robert Borsak, said in a letter to the NSW upper house president that the inquiry was concerned the DPP’s recusal application “may be an attempt to intimidate an inquiry witness”.

Borsak suggested this might amount to a contempt of parliament.

Contempt not a criminal offence

A finding of contempt of parliament would be damaging to Dowling and her office, but it is not a criminal offence. The upper house could not impose a punishment in this case.

Borsak asked NSW upper house president Ben Franklin to refer the matter to parliament’s privileges committee for consideration. Franklin will decide “early next week”, his spokesman said.

Inquiry members were concerned the recusal application might have “a chilling effect on future or potential witnesses”, Borsak said in the letter to Franklin.

Borsak said there were also questions about whether the ODPP had breached parliamentary privilege by seeking to rely on evidence before the inquiry as the basis for its recusal application.

The ODPP said in its statement on Friday that it “contends … that adducing the evidence does not breach parliamentary privilege”.

Top court to decide

However, it said it had asked the state’s top court, the NSW Court of Appeal, to resolve this issue.

The ODPP added that it considered its conduct “could not amount to contempt of the parliament”.

Borsak asked Franklin to refer two questions to the privileges committee, namely, “whether the making of the applications constitutes a substantial interference in the work of the committee and is therefore a contempt”, and whether there had been a breach of parliamentary privilege.

The privileges committee has previously said a contempt involves “any act or omission which obstructs or impedes the house [of parliament] or its committees in the performance of their functions”.

The upper house determines whether “a particular act or omission constitutes a contempt,” the committee said in a report this year.

“[For] an act to constitute contempt, it need not be intentional – a contempt may be intended or unintended.”

The explosive submission

In her 68-page parliamentary submission, Wass accused Dowling’s office of leaking information to Sydney radio station 2GB about proceedings involving an Indigenous youth to “embarrass and defame” Wass.

The inquiry that received the submission was intended to examine laws giving children accused of crimes protection from being publicly identified.

Wass said she had allowed the offender to present a “Welcome to Country statement” before he was sentenced for serious crimes in October last year.

Ben Fordham, host of 2GB’s morning program, described this on air as a “local scandal”.

Dowling gave evidence before the NSW upper house inquiry last Friday. She said she had only become aware after the broadcast that a relatively new media manager who had “worked at the ODPP for about 10 weeks” gave a screenshot of information about the case to 2GB. This included the youth’s name.

Wass alleged this amounted to a breach of statutory prohibitions on publicly identifying children accused of crimes. Dowling contends it did not. The youth’s name was not broadcast by 2GB, which is owned by Nine, the publisher of this masthead.

Dowling agreed in her evidence that she now knew her office “gave the story to 2GB”, but said she only became aware of this in recent days. She denied instructing anyone in her office to give the material to 2GB.

The submission is the latest outbreak of warfare between Dowling’s office and the judiciary. A number of District Court judges, including Wass, have taken aim at the ODPP over its handling of sexual assault prosecutions.

Those criticisms prompted Dowling to make complaints against two judges, Robert Newlinds and Peter Whitford, to the Judicial Commission. The watchdog issued reports critical of both judges.

Although Dowling did not make a complaint to the watchdog about Wass, the pair have been at loggerheads in different forums.

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