Did NSW DPP Sally Dowling know of leak? Staff won’t say

The office of NSW chief prosecutor Sally Dowling has refused to disclose whether she was aware confidential information was to be leaked to a radio station.

NSW chief prosecutor Sally Dowling SC during state budget estimates. Picture: NewsWire / Gaye Gerard

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The office of NSW chief prosecutor Sally Dowling SC has refused to disclose whether she was aware that confidential information ­relating to an Aboriginal boy ­appearing before the courts was to be leaked by one of her employees to a commercial radio station.

State police this week confirmed its cybersecurity unit had concluded a probe into the NSW Office of the Director of Public Prosecutions after possibly legally restricted material relating to the underage defendant was shared with 2GB host Ben Fordham.

No charges have been laid, and the matter has been referred back to the prosecution office for a non-criminal investigation.

The Australian last month revealed Sydney detectives were running an extraordinary criminal investigation into the leak to 2GB, and probing allegations that it was motivated by a staffer in a bid to damage the reputation of judge Penelope Wass SC, who had been critical of Ms Dowling’s conduct.

The leaked material formed part of Fordham’s exclusive report about an alleged “violent criminal” who was permitted by Judge Wass to conduct a Welcome to Country before he was sentenced.

The ODPP on Wednesday avoided a series of detailed questions about Ms Dowling’s involvement in the leak, and whether she was aware that the confidential information was to be shared with Fordham and 2GB. This is despite prosecution guidelines stipulating the ­“approval” of Ms Dowling or one of her deputies is required to respond to media inquiries “other than those of an uncontroversial nature concerning matters in the public domain”.

“Following notification from the NSW police that their investigation has concluded and that no charges will be laid, the ODPP will consider whether there has been any breach of its code of conduct and take such action as may be ­appropriate,” an ODPP spokesperson said in response to The Australian’s questions.

Officers during their investigation formed the belief that a member of the ODPP media unit took a photo of an intranet page which included the details of the matter relating to the underage Aboriginal defendant. The image was then leaked to 2GB.

The contents of the image, which included the full name of the underage defendant, was reported by Fordham, who slammed Judge Wass for having “in my humble opinion, a shocker” when she invited the child to perform the cultural ceremony prior to sentencing.

Fordham did not report the defendant’s name, but it was included in the image provided to him.

The 2GB story aired the day after the ODPP had been asked questions by The Australian about an article with the full details of a formal complaint lodged by Judge Wass against Ms Dowling, in which she alleged the DPP had tried to “exert influence” over the ­judiciary.

The Australian understands the child gave the Welcome to Country as a relevant part of his evidence, and that Judge Wass sought and obtained the parties’ consent to take the evidence.

The Australian is not suggesting that the story of the child’s Welcome to Country was leaked to 2GB to take the focus from Judge Wass’s complaint against Ms Dowling, nor that Ms Dowling was personally involved in the leak. The motivation for leaking the material is unknown.

Ms Dowling, appearing before state budget estimates last month, said she would wait until the police investigation had concluded before conducting any “internal disciplinary proceedings”. She confirmed her office had conducted a cyber search to determine who had access to the information handed to Fordham, and that information had been handed to police as part of their investigation.

“I don’t propose to answer any more questions, or questions in any detail, because there is an ongoing police investigation,” she said at the time. “I don’t think that would be appropriate.”

Asked whether a staff member leaking information would constitute a breach of contract, Ms Dowling again refused to respond.

“It depends on their role … I take issue with the word leak. For example, members of our media team are employed to talk to the media about matters that we are running,” she said. “So I can’t ­answer that question accurately the way it’s framed.”