‘Outrageous’: Legal heavyweights back Dowling after controversial report

Legal heavyweights have swung their support behind the Director of Public Prosecutions after a controversial NSW upper house inquiry found she gave false evidence in parliament and approved her office giving a negative story about a sitting judge to the media.

Nicholas Cowdery, KC, who served as DPP in NSW for 16 years, said the report, released on Tuesday, was outrageous and damning findings made about Sally Dowling, SC, by a 4-3 majority of MPs were unsupported by the evidence.

“To accuse somebody like the DPP of lying to a parliamentary committee requires very strong evidence and support,” he said.

In this case, there was evidence to the contrary, he said. Cowdery said the dissenting opinions of three of the seven MPs on the committee were strong.

The majority of the committee recommended the state government consider establishing a new parliamentary oversight committee for the Office of the Director of Public Prosecutions.

Cowdery said this was “a proposal that has been discredited completely in the past” when he was DPP in 2001 and the idea was floated by the Coalition opposition.

“That ugly head has been raised before and knocked down, and it’s quite inappropriate that it be raised now,” he said.

Former Independent Commission Against Corruption commissioner Megan Latham, a former Crown prosecutor and District and Supreme Court judge, said the report had “provoked deserved criticism” from Attorney-General Michael Daley and Cowdery.

“Anyone who reads the majority’s reasoning will be struck by its flawed logic,” Latham said.

She said the majority “rejected direct evidence in favour of hearsay and conjecture” in order to make findings against Dowling.

Latham said that an inquiry that operated “beyond its remit and concerns itself predominantly with a dispute between senior public officials contributes nothing to the public good”.

“At a time when Western democracies, including Australia, are suffering from a loss of public trust in the institutions of government, a committee whose processes and procedures have been subverted runs the risk of contributing to that malaise.”

During her evidence before the upper house justice and communities committee last year, Dowling admitted her office effectively gave a story about District Court Judge Penelope Wass to 2GB in October 2024.

Dowling vehemently denied she authorised the ODPP’s media manager providing the information to 2GB, and said she only became aware that her office was the source of the story more than a year later, in December 2025. The majority did not accept her denial.

The parliamentary inquiry heard Dowling was present at an internal meeting with the ODPP media manager and an external media consultant a day before the 2GB story aired.

Dowling told the committee she did not dispute that her media manager “had a mistaken understanding” after the meeting that she was authorised to raise the story with 2GB. But she said she “did not, and would not have, approved this occurring”.

Dowling said that she “was, as is my usual practice, also reading emails and texts concerning various prosecutions and other ODPP business” during that meeting.

“I deeply regret now not giving that meeting my complete attention,” Dowling said.

The 2GB story followed a wave of negative publicity for the ODPP.

Some District Court judges, including Wass, had delivered decisions criticising the office’s handling of sexual assault cases, prompting The Australian to report on an alleged “#MeToo overkill”.

Dowling lodged complaints with the Judicial Commission about two decisions, by judges Peter Whitford and Robert Newlinds. The watchdog said in 2024 that their comments were inappropriate and had no evidentiary foundation. Both judges apologised.

“The committee is satisfied the story was pitched in retaliation for Judge Wass’ previous criticisms of the [ODPP],” the majority said.

Report ‘farcical’: Daley

Attorney-General Michael Daley doubled down on his earlier claims that the inquiry was a “stitch-up” and told ABC radio on Wednesday that it was “bordering on the abuse of the processes of the parliament”.

The majority recommended Daley “consider establishing a formal inquiry with compulsory powers” to examine the 2GB incident, “with a view to determining whether there are grounds to remove” Dowling from office.

“That won’t be happening,” Daley said. “Even if I wanted to get rid of the director, which I most certainly don’t, I’d have to take that report to the governor and recommend her removal, and the governor, being a [former NSW Court of Appeal judge] … would laugh me out of her office if I was to try and use this report to remove the director.

“I wouldn’t be able to do it because it’s so farcical.”

He said on Tuesday that, in light of his “serious concerns about the recommendations and findings made in this report, I will instruct the Crown Solicitor’s Office to brief senior counsel to review it”.

‘Buck always stops at the top’

Shadow attorney-general Susan Carter, who was one of two Liberal MPs on the inquiry who endorsed the majority’s findings, told ABC radio that Daley’s comments were “extraordinary”.

It was a “real shame that he’s come straight out of the gates with those comments without apparently having read the report itself”, Carter said.

Asked if it made a difference whether Dowling authorised information being given to 2GB or a staff member acted alone, Carter said: “I think the buck always stops at the top.

“I think it just doesn’t pass the pub test to say a junior made that decision and I therefore have no responsibility for what happened.”

The Law Society of NSW and the NSW Bar Association expressed concern in a joint statement about a potential new parliamentary oversight committee for the ODPP.

“It is a fundamental principle of our justice system that decisions to initiate and maintain criminal prosecutions remain free of interference,” they said.

“The bodies representing the state’s 47,000 lawyers urge profound caution in considering any reform which may risk undermining this prosecutorial independence, which is critical to the proper functioning of our criminal justice system.”

In a statement on Wednesday, the state’s Crown prosecutors offered their support for Dowling.

Senior Crown Prosecutor Brett Hatfield, SC, said it was “fundamental to the operation of our criminal justice system that the independence of [the ODPP] is preserved and that it be free from political interference”.

Legal Aid NSW chief executive Monique Hitter said the DPP was “a non-political independent statutory officer” and it was critical that the ODPP’s “prosecutorial decisions are made at an ‘arm’s length’ from politics, and solely on the basis of the law and available evidence”.

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