Attorney-general pressured over future of NSW’s top prosecutor

NSW Attorney-General Michael Daley has told a tense parliamentary hearing he has confidence in Director of Public Prosecutions Sally Dowling, SC, amid a controversy between the top prosecutor and a District Court judge.

Daley came under pressure over Dowling’s future during budget estimates in state parliament on Wednesday.

Dowling has been at the centre of a long-running feud with Judge Penelope Wass after a highly critical story about Wass aired on Sydney radio station 2GB in October 2024.

The top prosecutor admitted during her evidence before a parliamentary inquiry last year that her office effectively “gave the story” about Wass to 2GB. However, Dowling said she only became aware of this more than a year after the fact, and she did not authorise the information being disclosed.

‘Personal confidence’ in Dowling

“Do you have personal confidence in the director?” NSW upper house MP Mark Latham asked Daley during the hearing on Wednesday, in Dowling’s presence.

“Yes,” Daley replied.

Latham claimed he had “talked to a lot of MPs in this place” and “they’ve totally lost confidence in the director and the way this matter has been handled at the ODPP”.

Daley said Dowling, who was appointed as the state’s top prosecutor in August 2021 for a 10-year term, was “a highly senior legal practitioner in NSW and is the statutory office holder of one of the most important offices in the state, and she’s given evidence under oath” about the Wass incident.

Latham suggested Dowling’s evidence to the parliamentary inquiry was “not credible and she should be dismissed”, and asked Daley, “Why you haven’t removed her?”

Daley said that “the director of public prosecutions, in whom I have confidence, has given evidence before [the] parliamentary committee … under oath”.

He said he would “let the parliamentary committee do its work”.

“You’re asking me to pre-empt the results of the parliamentary committee, and I’m not going to do that.”

The judge’s submission

In an explosive 68-page submission to the parliamentary inquiry last year, Wass alleged the 2GB 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 upper house committee conducting the inquiry might consider referring senior ODPP officers to the governor “for removal from office”. The inquiry is due to report by May 8.

Under the Director of Public Prosecutions Act, the DPP may be removed by the governor “for incapacity, incompetence or misbehaviour”.

Latham asked Dowling during Wednesday’s hearing if she now acknowledged “that what happened with 2GB … was wrong”.

The top prosecutor said she acknowledged “it was deeply regrettable that that information was conveyed by the [ODPP] media manager without approval from myself or from any of the other executives”.

“The way in which 2GB reported on that incident is a matter for them,” Dowling said.

Latham pressed: “Can I ask you, in the pitching of the story [to 2GB], what did it have to do with the fact that at the time Judge Wass … had been sharply critical of the way you do your job as director?”

Dowling said that she was “not aware that the story was, quote, pitched, by a person from my media team”.

She said that at the time of the incident the ODPP media team members were new to their roles.

“One had been there for six weeks; one had been there for three weeks,” she said.

Dowling has said in a response to supplementary questions on notice from the inquiry that she did not dispute that ODPP media manager Sally Killoran “had a mistaken understanding” after an internal 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.

Dowling took issue with Latham’s use of the word “leak” to describe the information given to 2GB, and said that “what happened in that courtroom was amenable to public discussion”.

The 2GB story criticised Wass for inviting the Indigenous offender to perform what she called a Welcome to Country before being sentenced for a serious crime. The offender performed a short Acknowledgement of Country before his sentence.

“You understand what a leak is? Giving media information on background where you don’t want it attributed to you, which is exactly what your office did. That’s what a leak is,” Latham said.

‘Media manipulation’

He added that “the ODPP should stay right out of media manipulation” because “it never ends well, it never has, and it never will for you”.

“I would agree with that proposition,” Dowling said.

The inquiry has heard Wass contacted police after the 2GB story because she was concerned the restrictions on identifying children in criminal proceedings may have been breached.

The information Dowling’s office gave to 2GB included the name of the Indigenous teen. However, 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.

Police concluded their investigation last year and no charges were laid.

Under questioning by Latham on Wednesday, Daley said that “there’s been a thorough police investigation which concluded with no charges being laid.

“I know the Office of the Director of Public Prosecutions has [also] conducted an internal investigation as to any workplace misconduct.”

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.

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