Judge Peter Whitford tells Newcastle District Court he is subject to a complaint from DPP to Judicial Commission of NSW

A longstanding judge has told a court the state’s top prosecutor has called into question his competency, impartiality, integrity and fitness to hold office as a public spat deepens between the DPP and judiciary over rape trials.

Justice scales generic.

A long-serving judge has revealed he is at the centre of a complaint from the state’s top prosecutor, calling into question his competency, impartiality and integrity following the ongoing brouhaha between some parts of the judiciary and the Office of the Director of Public Prosecutions over the handling of rape allegations.

NSW District Court Judge Peter Whitford, who raised the ire of NSW DPP Sally Dowling and prompted her office to release a rare public statement after he mentioned concerns of “opaque, even secret policies” leading prosecutors to continue with “meritless” sexual assault allegations, told a courtroom on Friday that he needed to raise the complaint as “a matter of procedural fairness”.

Judge Whitford, who was to preside over the sentence hearing of a Lake Macquarie drug dealer, told Newcastle District Court that he needed to tell prosecutors and defence lawyers of the presence of the complaint to the Judicial Commission of NSW.

He said he did so to allow all parties to make informed decisions because if he was to “make any order adverse to your client and your client later learned that I was subject at the time to a complaint of the nature of this complaint, and expressed in the language in which it is, they might have a reasonable basis for wondering whether I was inappropriately influenced in my decision making”.

Judge Whitford made headlines in February with comments in his decision of a costs application made by a man acquitted of sex allegations, including that sexual assault proceedings were being brought before the courts by the Office of the Director of Public Prosecutions (ODPP) “time and time again” and “without apparent regard to whether there might be reasonable prospects of securing a conviction”.

NSW Director of Public Prosecutions Sally Dowling SC

He added at the time that the ODPP did not follow its own guidelines on a worthy prosecution and endorsed similar criticisms from fellow Judge Robert Newlinds in following another unsuccessful prosecution.

“Far too frequently … one cannot help but conclude that any reliance upon the Director’s own published guidelines has been abandoned, or at least abandoned in some categories of case, in favour of simply letting a jury (or a judge sitting alone) decide the merits of a case, without any professional examination of either the reasonable prospects of securing a conviction or the public interest in pursuing the prosecution,” Judge Whitford said in February.

Judge Peter Whitford told Newcastle District Court he was subject to a judicial commission complaint from the DPP. File picture: Amy Ziniak

But his remarks were quickly criticised by the ODPP, which published a rare statement a few days later where it said Judge Whitford’s comments “are unfounded and inflammatory, and are unequivocally rejected”.

However, the criticisms from the bench did prompt Ms Dowling to call for an audit of sexual assault cases.

Then, on Friday in Newcastle, Judge Whitford took his seat on the bench and immediately told the court that he believed it was “necessary as a matter of procedural fairness that I inform you of a particular matter, in order that you might advise your clients and obtain instructions”.

“I consider I am obliged to inform the parties that I am presently the subject of a complaint to the Judicial Commission made by the Director of Public Prosecutions,” Judge Whitford said.

He later added: “In a variety of ways, using quite strong language, the complaint calls in question my fitness to hold judicial office, my competence, my impartiality and my integrity. “All that notwithstanding, no appeal nor any application for judicial review has been filed by the director, simply a complaint to the Judicial Commission [of NSW].

“I do not consider the fact of the complaint, nor its terms, inhibit my capacity to deal impartially with the matter listed before me today.

“However, as I say, procedural fairness dictates that I inform you.”

Judge Whitford then momentarily left the bench before defence barrister Gillian Jewison spoke with her client and informed the court they had no issues with the judge dealing with the matter.

A Crown prosecutor also told the court he had no issues to raise and the sentence hearing went ahead.

A spokesperson for the ODPP declined to comment when asked about the Judicial Commission of NSW complaint.