source : the age
A historical child sexual abuse trial is among a series of NSW criminal cases that remain in limbo after the state’s top prosecutor asked the presiding judge to recuse herself based on an alleged appearance of bias.
The controversy risks delaying or denying justice in the case, which involves an elderly accused with serious health issues and crimes allegedly perpetrated 70 years ago.
Director of Public Prosecutions Sally Dowling, SC, and District Court Judge Penelope Wass are at the centre of a public feud that escalated dramatically when Wass criticised Dowling and her office in a submission to a NSW parliamentary inquiry.
It triggered an application in December by Dowling for Wass to disqualify herself from hearing the sex abuse trial on the basis a fair-minded observer might think the judge might not bring “an impartial and unprejudiced mind” to the prosecution in light of the submission.
Wass adjourned the trial and three other criminal proceedings unrelated to that case following similar applications.
The recusal application has yet to be determined. The judge said last year that parliamentary privilege might preclude her submission being used in court.
‘Extraordinary’ submission
The Office of the Director of Public Prosecutions asked the state’s top court to resolve the privilege issue. On March 5, the NSW Court of Appeal made a declaration that parliamentary privilege did not prevent Dowling’s office making the recusal application by referring to the submission.
The court said it was unaware of any other case involving “a sitting judge making a submission to a parliamentary committee about the conduct of a litigant in pending proceedings before the judge”, and it was fair to describe this as “extraordinary”.
After the decision, Wass made orders in the four cases requiring the ODPP to file an amended recusal application and any additional evidence by March 9. A further directions hearing is slated for March 20, but no date has been set for the final hearing.
Further criminal proceedings before Wass are likely to be affected by developments in those cases.
The recusal application is focused on whether an appearance of bias arises from the fact the submission was made. There is no allegation of actual bias.
Elderly accused and complainants
The child sexual abuse trial involves allegations dating to the 1950s, with an elderly accused and elderly complainants.
“The proceedings were commenced in 2021. Accordingly, it has taken over four years for this matter to get to trial,” Wass said in court on December 10.
“The matter was listed today for the hearing of final addresses and my summing-up after a judge-alone trial, which has so far lasted 14 days over almost a month.”
She said a reason for the judge-alone trial was “the accused’s serious mental and physical health issues”.
“If I do recuse myself, it will mean that the trial will have to begin afresh before another judge some time in the future,” Wass said.
The accused’s barrister told the court a potential retrial “not only disadvantages my client, but the numerous complainants who are very elderly, some have got cancer, some are very sick, and for them to have to go through a retrial has considerable concern for me”.
The three other proceedings, two of which are linked to each other and involve the same offender, are at the stage of sentencing.
A successful recusal application would result in a new judge being responsible for the sentences.
On December 12, Wass said the offender in the two related proceedings had been “waiting for some time to be sentenced on extreme[ly] serious child abuse charges” after a jury verdict. She said she had hoped to sentence him that month.
‘Highly unusual’
The NSW Court of Appeal – Justices Mark Leeming and Kristina Stern and Acting Justice John Griffiths – made clear its decision on parliamentary privilege “does not express any view … concerning the merits of the judge’s submission”.
However, it noted it was “highly unusual for a sitting judicial officer to make a submission to a parliamentary committee bearing upon the conduct of any particular litigant” before them.
“[Any] judicial officer must constantly be concerned to ensure that justice is and has the appearance of being administered impartially,” the court said.
“Although we make no comment as to the judge’s submission, one of the incidents of holding judicial office is the 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.”
Contempt probe shut down
The NSW Court of Appeal decision puts an end to a separate parliamentary inquiry by the upper house privileges committee.
That inquiry was set up to examine whether using the Wass submission to seek a recusal breached parliamentary privilege, as well as whether making the application was a contempt of parliament.
The controversy
Dowling’s office has been mired in controversy since a highly critical story about Wass was aired on Sydney radio station 2GB in October 2024. At the time, the station was owned by Nine, the publisher of this masthead.
In a 68-page submission to parliament in November last year, Wass alleged the story was “part of a deliberate strategy by some of those within the ODPP, including Ms Dowling” to attack her or to influence her judicial conduct, or both.
Wass said the committee might consider referring senior ODPP officers to the governor “for removal from office”.
Dowling admitted in her evidence to the inquiry that her office effectively gave the story to 2GB, but said she only became aware of this more than a year after the fact.
She said in a subsequent written submission that she regretted not giving her “complete attention” to an internal meeting she attended the day before the story aired on 2GB.
Dowling said she did not dispute that ODPP media manager Sally Killoran “had a mistaken understanding” after that meeting that she was authorised to raise the story with 2GB.
However, Dowling stressed that she “did not, and would not have, approved this occurring”. The story related to a sentencing hearing for an Indigenous teenager presided over by Wass.
The judge’s submission was published online in December with no fanfare, the night before Dowling was due to give evidence at the inquiry, and was front page news in The Australian the next day.
The ODPP said in a later submission that it was “difficult to avoid the inference that the committee intended to ambush [Dowling] … with the judge’s submission at the inquiry hearing”.
At the time of the 2GB story, Wass and Dowling, among other District Court judges, were embroiled in an increasingly public row stemming from comments made by the judges in decisions in sexual assault proceedings.
The judges had expressed the view the ODPP was running unmeritorious prosecutions. Two judges – Robert Newlinds and Peter Whitford – met with disapproval from the Judicial Commission after Dowling lodged complaints against them over their remarks. The two decisions are no longer accessible online.
The inquiry
The NSW upper house inquiry is unusual. It was set up a year after the 2GB broadcast, ostensibly to examine identity protections for children in court proceedings.
The information Dowling’s office gave to 2GB included the name of the Indigenous teen. The radio station did not publish or broadcast his name to the public – in line with the statutory protections, which include criminal sanctions for breaches.
The inquiry has heard Wass contacted police after the 2GB story because she was concerned the restrictions may have been breached. Police concluded their investigation last year and no charges were laid.
Detective Acting Chief Superintendent Matt Craft, who oversaw but did not conduct the police investigation, told the inquiry Dowling had been “one of the people we were keen to … obtain a witness statement from” but she declined.
“Were you surprised that the chief prosecutor in the state of NSW declined to provide you with a statement upon request, in relation to the investigation of the potential breach of the child identity provisions?” Labor MP Stephen Lawrence asked.
“Honestly, no, I wasn’t surprised, because it’s a choice that’s available,” Craft replied.
In a submission after Craft’s evidence, Dowling said: “Had I been in possession of any evidence supporting the occurrence of a crime, I would not have hesitated to provide it to police.”
Dowling said that by the time she was asked to provide a statement, in January last year, police had already identified the person inside the ODPP who gave the information to 2GB, and had told her office they “believed there was insufficient evidence to commence any criminal proceedings”.
“This accorded with my own view that there had been no breach of the law,” Dowling said.
In March last year, NSW Police informed the ODPP their “legal advice confirmed there was insufficient evidence to proceed to any criminal charges”, Dowling said.
The parliamentary inquiry was due to report in February. It has extended the date to May 8.
Start the day with a summary of the day’s most important and interesting stories, analysis and insights. Sign up for our Morning Edition newsletter.
