NSW Bar Council drops complaints against DPP Sally Dowling SC

The NSW Bar Council has dropped two complaints that ­accused chief prosecutor Sally Dowling SC of attempting to ­influence the judiciary, claiming it does not have the jurisdiction to determine whether her actions amount to unsatisfactory professional conduct.

Director of Public Prosecutions Sally Dowling SC during NSW budget estimates in 2024.

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The NSW Bar Council has dropped two complaints that ­accused chief prosecutor Sally Dowling SC of attempting to ­influence the judiciary, claiming it does not have the jurisdiction to determine whether her actions amount to unsatisfactory professional conduct.

The council last week resolved to close the complaints made by barrister Alan Conwell and NSW District Court judge Penelope Wass after it was revealed Ms Dowling had engaged in private correspondence in the middle of a trial with Chief Judge Sarah Huggett.

Ms Dowling made a complaint to the Chief Judge about Judge Wass during a sexual assault prosecution, alleging Judge Wass was jeopardising the right to a fair trial by directing witnesses to present their phones as evidence, and threaten to “take the matter further” if the ­directions continued.

The communications were not disclosed to the defence, Mr Conwell.

Mr Conwell complained that Ms Dowling’s correspondence with the Chief Judge demonstrated “the intention to influence Judge Wass’s future decision-making” and said her conduct “undermined the public and ­profession’s trust” in the justice system.

Judge Wass also complained that Ms Dowling was trying to exert influence over her and ­requested there be an investigation into “whether Ms Dowling engaged in unsatisfactory professional conduct or professional misconduct”.

But in a decision handed down earlier this month, the Bar ­Council moved to dismiss the complaints because Ms Dowling was performing “the exercise of administrative or executive ­functions under legislation” it “does not have jurisdiction to consider whether the conduct constituted unsatisfactory professional conduct, or professional misconduct in connection with the practice law”.

NSW District Court judge Penelope Wass.

“In concluding that the letter fell within a function protected by s 263(4), the Bar Council is not to be seen to condone the letter or its contents,” the findings read.

“Rather, the Bar Council is ­acting in accordance with the ­limits of the jurisdiction ­conferred on it by parliament. The limits of the Bar Council’s jurisdiction are not matters of ­discretion.”

The Bar Council said it did have jurisdiction to determine whether her behaviour was unsatisfactory but that jurisdiction “is confined to considering whether the conduct complained of comprised conduct of a lawyer that was otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice”.

“On the basis that the Bar Council does not have jurisdiction to consider the complaints pursuant to ss 296 and 297 as matters in connection with the practice of law, the next question is whether the complaints identify conduct on the part of the director that justifies a finding that the director is not a fit and proper person to engage in legal practice,” the findings read.

“On any fair view, neither complaint identifies conduct of that character.”

The report continued: “Accordingly, it is recommended that the Bar Council resolve that the complaints be closed pursuant to section 277(1)(h) of the Legal Profession Uniform Law (NSW) on the basis that they require no further investigation.”