Judge Penelope Wass’s stunning accusation against ODPP
A NSW judge has called for the potential removal of chief prosecutor Sally Dowling SC, alleging she orchestrated leaking confidential information about an Indigenous child to damage the judge’s reputation.
A NSW District Court judge has sensationally suggested the government consider the removal of senior prosecution officers, which would include chief prosecutor Sally Dowling SC, in a parliamentary submission that claims Ms Dowling played a fundamental role in leaking information to a commercial radio station in order to damage the judge’s reputation.
The extraordinary claims form the apex of a long-running feud between judge Penelope Wass and Ms Dowling, which first came to light when the judge accused Ms Dowling’s office of shepherding “incredible and dishonest allegations of sexual assault” through the courts – allegations Ms Dowling has strongly denied.
In a startling 68-page submission to a parliamentary inquiry into the protection of children’s identities in court proceedings, Judge Wass has revealed she reported the ODPP to the police after becoming concerned the office may have broken the law when allegedly leaking information to 2GB about an Indigenous child who appeared in a court proceeding over which she had presided.
The submission also includes a file note by leading workplace lawyer John Laxon outlining a conversation he had with media executive Tom Malone, in which the lawyer claims Mr Malone sought legal advice for a friend within the ODPP who had been instructed by Ms Dowling to leak confidential information to 2GB.
“A serious and deliberate disclosure of confidential information, in breach of ODPP guidelines, occurred,” Judge Wass wrote in the submission.
“It served no public or justiciable purpose. It was designed to embarrass and defame me and to undermine the independence of a District Court judge with whom the ODPP has had issue. It did so by misusing the situation of a vulnerable Indigenous child.”
On October 25, 2024, 2GB presenter Ben Fordham aired an “exclusive” segment on his morning radio show declaring Judge Wass had had “a shocker” when giving a young offender – anonymised as DR – the opportunity to perform a welcome to country “in the middle of a courtroom”. According to Judge Wass’s submission, there were many flaws in the 2GB report.
The child gave the welcome to country as a relevant part of his evidence, she wrote, and she sought and obtained the parties’ consent to take the evidence.
After the case was over, Judge Wass told DR – who she had sentenced to the maximum statutory penalty – that if he were in trouble with the police in the future, he would not be invited to perform a welcome to country.
NSW opposition legal affairs spokesman Alistair Henskens appeared as a guest in the 2GB segment, describing Judge Wass’s actions as “entirely inappropriate”. Shortly after the broadcast, Judge Wass says she approached NSW District Court chief judge Sarah Huggett, “anxious to know who had provided the information about DR to 2GB”.
“The Chief Judge informed me that Ms Dowling had told her that to her knowledge the ODPP had not made the disclosure, a statement now known to be inaccurate,” Judge Wass wrote.
Judge Wass, in her submission, says she was informed by Mr Henskens in late October, 2024, that someone within the ODPP had disclosed confidential information about the matter to 2GB, including DR’s full name.
Judge Wass says she approached police officers after becoming concerned the ODPP had broken the law when allegedly disclosing confidential information about DR to 2GB, and gave a statement to Detective Superintendent Matthew Craft – head of the NSW Police Cybercrime Squad – on November 6, 2024.
During the investigation, Superintendent Craft disclosed to Judge Wass that a junior media officer had taken a screenshot of the ODPP intranet and provided it to “a superior”, Judge Wass claims.
According to the submission, Superintendent Craft on January 10, 2025, told Judge Wass that the ODPP was initially co-operating with the investigation, but had stopped.
“Given the implausibility of the suggestion that a junior media officer would of their own volition initiate disclosure of the (DR) proceedings to 2GB … we discussed my concerns about the inadequacy of the investigation and I asked questions regarding who else might have been involved in the disclosure,” she wrote.
“On January 18, 2025, I sent an email to Detective Superintendent Craft and Detective Sergeant Julian Thornton, setting out the matters discussed and asking the NSW Police Force a series of questions, particularly in respect of who may have authorised the disclosure within the ODPP, and I did not believe that it involved the actions of just one junior media officer.”
The criminal investigation concluded on March 21 and no charges were laid.
Judge Wass, in her submission, says she was informed by Solicitor for Public Prosecutions Craig Hyland on April 4, that the ODPP had engaged “an independent external third party” to conduct an investigation into the alleged leak.
Mr Hyland offered for Judge Wass to speak with Norton Rose Fulbright partners who were leading the investigation – an invitation Judge Wass accepted.
On May 6, Judge Wass wrote to the Norton Rose investigators “expressing my concern that the investigation was no longer ’independent and external’ as characterised by Mr Hyland, but rather that Norton Rose was providing advice to the ODPP, on instructions from the ODPP, in the interests of the ODPP”.
In the submission, Judge Wass says she received a phone call from her lawyer, Mr Laxon, on May 5, saying he had spoken with Mr Malone, Nine Radio’s managing director.
“Mr Malone was looking for legal representation … for his ‘friend’, the media officer at the ODPP,” Judge Wass wrote in the submission.
“He told Mr Laxon that the ODPP media officer had disclosed the material to 2GB on the instructions of Ms Dowling.”
Judge Wass attached a copy of Mr Laxon’s file note from the conversation with Mr Malone to her submission.
The NSW parliamentary inquiry into protections for proceedings involving children was established to inquire into existing identity protections of any accused appearing in court, reporting mechanisms and sanctions for breaches of identity protections and examples in the previous two years where children’s proceedings have been made public.
Judge Wass claims she received “derogatory public statements and threats” from people who listened to the 2GB broadcast.
“I was called ‘woke’ and ‘out of touch’ and called on to be ‘disbarred’. The public called for my sacking and accused me of being drug affected,” she wrote in the submission.
“Comments on social media were also inflammatory. As an example of the level of hate speech that ensued at the time, in a post on Reddit that included a photograph of me, I was called upon to be imprisoned and in one instance to hang myself.”
Judge Wass attached to her submission criticisms she received in the wake of the broadcast, including being called “embarrassing” and a “disgrace” who “should stand down”.
In concluding her submission, Judge Wass requested the committee consider whether ODPP guidelines should be strengthened to stop its media unit from sharing information about children, and whether there should be a mandatory investigation when prosecutors are implicated in “an alleged breach of identity protections of a child”.
She questioned whether senior officers involved in the alleged disclosure to 2GB remain “best placed to manage the serious and significant obligations placed upon them to serve the community by preserving the independence and integrity of the ODPP, considering its crucial role in delivering justice in NSW”.
She also asked the committee to consider whether senior ODPP officers involved in the alleged disclosure to 2GB should be stood down. “I respectfully ask that the committee also consider … whether it is appropriate to refer senior officers involved in the disclosure and the subsequent handling of the matter to the Governor … for consideration for removal from office for incompetence or misbehaviour,” the submission reads.
Judge Wass’s submission comes after she referred Ms Dowling last year to the legal services watchdog, alleging Ms Dowling tried to “exert influence” over the judiciary when having private correspondence with the Chief Judge about Judge Wass’s conduct. The complaint was referred to the Bar Council but was dropped due to jurisdictional issues.
The submission also follows a dispute between Ms Dowling, Judge Wass and other District Court judges who have accused her of being overly-zealous in sexual assault prosecutions.
Ms Dowling has always defended her record on prosecuting sexual assault matters, and has referred two judges who have made similar criticisms to the Judicial Commission. Both complaints were upheld.
