Conflict between judge and NSW prosecutors referred to powerful privileges committee amid ‘intimidation’ concern | New South Wales
The powerful New South Wales privileges committee has been asked to examine whether the state’s prosecution breached parliamentary rules by using evidence given to a judge to exclude him from hearings.
An upper house inquiry has called for an investigation into the management of the Directorate of Public Prosecutions (ODPP), arguing it would potentially create a “chilling effect” on future witnesses. This came after a statement critical of the ODPP, made under parliamentary privilege by district court judge Penelope Wass, was used to argue that the prosecutor should stay away from criminal cases in which he was involved.
In a letter on Friday, inquiry chairman Robert Borsak asked the privileges committee to consider whether the use of Wass’ evidence was a breach of parliamentary privilege. He also asked the committee to consider whether the attempt to remove Wass from the hearings was contrary to its investigation.
“We are concerned that a very serious breach of privilege may have occurred,” Borsak said.
“We are also concerned that this action may have been an attempt to intimidate an inquiry witness by creating a chilling effect on future or potential witnesses,” he said, adding that the bill of rights prevents material from parliamentary hearings from being used in court.
It is the latest escalation in the conflict between Wass and NSW Director of Public Prosecutions Sally Dowling during the parliamentary inquiry into identity protection in cases involving children.
In a 68-page submission to the inquiry last week, Wass called for consideration of removing Dowling as state attorney general. In his submission, the judge accused him of orchestrating the leak to Sydney radio station 2GB of details of an Indigenous boy whom Wass allowed to make a “Welcome to Country statement” before sentencing him for serious offences.
The child’s name was not published in the October 2024 broadcast, in which presenter Ben Fordham criticized the incident, but Wass claimed that the leak was a violation of the ban on naming child defendants in criminal cases.
In his presentation, Wass claimed that Dowling personally organized the leak. He said he received threats and offensive comments from the public after the report was published.
Dowling told the inquiry that the leak was caused by the ODPP’s media unit but denied he was personally involved. He claimed Wass had a “personal grievance” against him and the ODPP and accused the investigation of a “gross denial of procedural justice”.
Wass was among the district court judges who criticized the ODPP’s handling of sexual assault cases under Dowling’s tenure.
Following Wass’ statement, The Australian newspaper reported that a prosecutor demanded on Wednesday that Wass recuse himself from a landmark sexual abuse case. A successful motion to dismiss may result in the hearing being canceled or retried.
Rejection request postponed until March
The Australian reported that a fresh motion to dismiss has been filed in another case and further motions are awaited.
Following the report, the committee confirmed the minutes of the committee’s public hearing last Friday, and Wass’ presentation was part of the DPP’s application for the judge to recuse himself, according to Borsak’s letter to upper house speaker Ben Franklin.
On Friday, the ODPP confirmed that Wass had applied to be kept separate from criminal cases to which the ODPP was party on the basis of “prejudicial prejudice”, saying the investigation was based on “publicly available” material.
“ODPP submits that the material relates to the issue of bias and that the presentation of the evidence does not breach parliamentary privilege,” he said in a statement.
“Accordingly, ODPP considers that reliance on the material will not amount to disrespect of parliament.”
The ODPP said the matter “raises significant and complex legal and constitutional issues relating to the scope of parliamentary powers under the Australian Constitution and the integrity of the judicial system” and asked for the questions to be determined by the NSW Court of Appeal.
Guardian Australia sought comment from Wass through the NSW District Court, who refused to comment on the matter.
