The extraordinary war between NSW Director of Public Prosecutions Sally Dowling SC and at least part of the NSW District Court continues.
Under Dowling, the NSW Office of Director of Public Prosecutions was heavily attacked by 5 judges in that state for bringing criminal cases lacking in merit.
The criticism from Judge Whitford prompted a public response from the ODPP:
“The judge’s comments are unfounded and inflammatory, and are unequivocally rejected”
Dowling said at the time that:
“I felt that it was necessary for me to stand up for my staff. I know there are no secret policies.”
On 22 May 2024, Dowling SC sent email correspondence to the Chief Judge of the District Court, Justice Sarah Huggett without the knowledge or consent of the other party or the Crown briefed in the trial. The letter was about 3 rulings by Judge Penelope Wass, described as an “emerging practice” in the letter ,for witnesses to present their phones as evidence.
The letter:
→ claimed that the rulings “ignored the existing mechanisms (with all their procedural safeguards) that are available to parties to seek the production of evidence that is not part of the Crown case and infringed upon the rights of the accused person and the Crown to a fair trial.”
→ opined that the rulings “lacked express legislative power and cannot be characterised as a power arising by necessary implication” and referred the Chief Judge to the observations of Justices Gleeson CJ and Callinan J in R v Taufehema (sic) [2007] HCA 11 at [37] regarding the adversarial nature of a criminal trial.
→ foreshadowed that Dowling “will consider steps she considers to be properly available to her to seek judicial review should further directions of this nature be made by me in the future”
→ threatened to “take the matter further” if such directions continued.
This ex parte communication with the Court was made during the course of two of the ongoing criminal proceedings before Judge Wass in which the rulings had been made.
In Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 300, Mason CJ and McHugh J said:
“There has been no judicial attempt to list exhaustively the attributes of a fair trial… However, various international instruments and express declarations of rights in other countries have attempted to define, albeit broadly, some of the attributes of a fair trial. Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’) enshrines such basic minimum rights of an accused as the right to have adequate time and facilities for the preparation of his or her defence and the right to the free assistance of an interpreter when required. Article 14 of the International Covenant on Civil and Political Rights (‘the ICCPR’), to which instrument Australia is a party, contains similar minimum rights, as does s 11 of the Canadian Charter of Rights and Freedoms. Similar rights have been discerned in the ‘due process’ clauses of the Fifth and Fourteenth Amendments to the United States Constitution.”
In R v Taufahema [2007] HCA 11; 228 CLR 232; 81 ALJR 800; 234 ALR 1; 168 A Crim R 95, Gleeson CJ and Callinan J said that:
“the adversarial procedure of criminal justice, which is bound up with notions of judicial independence and impartiality, and according to which the issues at trial are chosen and defined by the parties and their counsel, is at the heart of the matter. It is the executive branch of government that decides whether to prosecute, and what charges to lay. A trial is fought as a contest between the executive government and a citizen. The judge presides neutrally over that contest. Counsel for the respective parties define the issues, decide what witnesses will be called and what questions will be asked, and decide what arguments will be pursued and what will be abandoned. The general rule that litigants are bound by the conduct of their counsel, a rule essential to the adversarial system, applies with at least as much force to the prosecution as to the defence.”
In Griffin v The Council of the Law Society of NSW [2016] NSWCCA 364, a Solicitor sent a threatening letter to a Judge that asserted the Judge had acted vindictively, may not have written the judgment “at all”, and made a decision “without good faith and with bias”. Sackville AJA, with whom the other members of the Court agreed, held that:
“The finding of professional misconduct was open because the Solicitor made allegations of serious misconduct against a judicial officer before whom the Solicitor had appeared, without providing any supporting evidence. Moreover, the Solicitor made the allegations in the context of an attempt, coupled with threats, to persuade the Judge to alter orders he had made in the proceedings just concluded.”
Wass SC DCJ, in a judgment disclosing the letter to the Chief Judge, wrote that:
“I regard such a warning of the contemplated judicial review, although delphic as to what form it might take, as extremely serious, particularly as it was delivered during the course of my consideration of two of the three cases at hand and where it sought to have me take that matter into account in my determination of future cases.”
It has recently been reported that:
“NSW District Court judge Penelope Wass has taken the extraordinary step of making a formal complaint against chief prosecutor Sally Dowling SC, after Ms Dowling raised secret grievances about her to the court’s chief judge in the middle of a criminal hearing.”
Judge Wass told the Taree District Court on Tuesday morning that she had made the complaint to the Office of the NSW Legal Services Commissioner”
This is the latest chapter in a long running NSW feud. It remains to be seen what the outcome of this complaint against Dowling will be.
Author adminPosted on Categories Criminal law