NSW’s top prosecutor has been given the green light to continue her fight to have a senior judge removed from a historic sex crimes trial on suspicion of bias.
The NSW Supreme Court ruling is the latest development in a long-running dispute between Director of Public Prosecutions Sally Dowling SC and District Court Judge Penelope Wass. The dispute came before the NSW Court of Appeal last week.
As part of its recusal request, the PDP referred to a presentation Wass made to a parliamentary committee, in which he harshly criticized Dowling. The appeal court had to determine whether the century-old bill of rights, which protects parliamentary freedom of speech, meant the presentation could not be used to support the push to impeach Wass.
On Thursday, the court ruled that the bill of rights did not “preclude the director from filing (and the district court from determining) a request for recusal based on suspicion of bias.”
He reasoned that courts must, under the nation’s constitution, be free from bias or fear of bias: “The application of Article 9 (of the bill of rights) cannot produce a different result.”
However, the court noted that its decision “does not determine, and should not be understood as expressing, any opinion on the merits of the application that the judge herself disqualifies.”
The recusal appeal against Wass has not yet been determined.
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In December, Wass was highly critical of Dowling and asked parliament to consider removing her as the state’s top prosecutor, as part of a 68-page submission to a parliamentary inquiry.
In the submission, the judge accused Dowling of arranging to leak details about an Indigenous boy, whom Wass allowed to make a “welcome to country statement” before sentencing him for serious offences, to Sydney radio station 2GB.
The boy’s name was not broadcast during an October 2024 program in which host Ben Fordham criticized the incident, but Wass alleged that the leak was a violation of the ban on naming children accused in criminal proceedings.
Wass alleged in his filing that Dowling had personally organized the leak and had received threats and offensive comments from the public after the report was broadcast.
Dowling told the inquiry that the leak had occurred in the ODPP media unit, but denied having been personally involved in it. She alleged that Wass had a “personal grievance” against her and the ODPP, and accused the investigation of a “serious denial of procedural fairness.”
The court, in its ruling on Friday, said it “does not express any opinion, and should not be understood to express any opinion, on the merits of (Wass’s) submission” to the inquiry.
However, he called the submission “extraordinary”, adding that it was “highly unusual for a sitting judicial officer to make a submission to a parliamentary committee on the conduct of a particular litigant”, and that judges “should refrain from making statements that might give rise to the perception that the judge cannot deal with the matters before him impartially”.
Wass has been among several district court judges who have criticized the ODPP’s handling of sexual assault prosecutions during Dowling’s tenure.
Dowling’s decision to use a typically privileged document to file a recusal application against Wass was also scrutinized by parliament’s privileges committee. Members of the inquiry into identity protection in proceedings involving children asked the committee to examine whether the ODPP had broken parliamentary rules, citing a potential “chilling effect” on future witnesses.
It is not yet clear how the court’s ruling affects that review.
