NSW DPP Sally Dowling tells The Australian: ‘Take down report of complaint about me’
The extraordinary bid by NSW DPP Sally Dowling to bury reporting of a senior judge’s complaint against her comes after she previously threatened to sue The Australian for defamation.
In an extraordinary move, the office of NSW chief prosecutor Sally Dowling SC has demanded The Australian remove an article revealing that a senior judge lodged an official complaint against her, alleging Ms Dowling tried to “exert influence” over the judiciary and engaged in “ethically questionable” behaviour.
The highly unusual bid to bury reporting of District Court judge Penelope Wass’s complaint comes after Ms Dowling earlier threatened to sue The Australian over an article in which a senior police officer acquitted of rape blasted the Office of the Director of Public Prosecutions for bringing his case to trial.
The Australian has declined Ms Dowling’s request to remove the article detailing Judge Wass’s complaint, and rejected her demand to apologise or “correct” the article in which NSW policeman Ankit Thangasamy alleged the ODPP was powered by a “certain ideology” to run baseless rape prosecutions. The newspaper stands by its public-interest reporting in both cases, and both articles remain on line.
The extraordinary bid to curtail reporting of complaints against Ms Dowling comes amid a feud between the state’s judiciary and prosecutions office, in which some judges have accused Ms Dowling of running baseless sexual assault cases that have no hope of securing a conviction.
In a complaint to the Office of the Legal Services Commissioner obtained by The Australian, Judge Wass alleged in her opinion that Ms Dowling tried to “exert influence” over her when engaging in private communications with the court’s chief judge in the middle of the criminal hearing. The result of that complaint is unknown.
In what is understood to be the first recorded instance of a NSW judge filing a formal complaint against the state’s chief prosecutor, Judge Wass claimed Ms Dowling possibly defamed, bullied and intimidated her when issuing a media statement saying her private comments to chief judge Sarah Huggett were “entirely appropriate”.
In an email sent to The Australian’s lawyers on Sunday evening, the ODPP’s media manager requested that the article be removed, issuing a deadline of 9am on Monday for a response.
The ODPP said the complaint was the subject of a formal response to the OLSC, and the complaint proceedings were not yet finalised.
“Judge Wass SC is presently presiding over trial proceedings at Sydney District Court, and may be expected to preside over proceedings prosecuted by the Director in the future,” the email stated.
“We ask that you please remove the article in question, so as to lessen any potential impact on current and future proceedings, which includes the apprehension of bias that arises as a result of the publication of the terms of the complaint.”
The Australian has declined to remove the article, rejecting the claim that the article would have any potential to interfere with the proper administration of justice.
“It simply does not follow that the existence of one complaint by Judge Wass against Ms Dowling SC would lead members of the public to apprehend Judge Wass is biased against the ODPP in all matters,” wrote Thomson Geer partner Justin Quill, acting for the newspaper, in response to the complaint.
“Reporting on the fact and nature of a matter of public interest is hardly conduct which denigrates judges or the court so as to undermine public confidence in the administration of justice.
“Our client considers reporting on the conduct of the Office of the Director of Public Prosecutions NSW to be matters of extreme public interest.”
Last month Ms Dowling threatened defamation action against The Australian over an article in which Mr Thangasamy, who was found not guilty by a jury after being accused of raping a woman in a club toilet cubicle, claimed the ODPP was “making a mockery of the court process” by prosecuting meritless cases, to the detriment of legitimate sexual assault victims.
Mr Thangasamy said the office “sacrifices the truth” to run baseless rape prosecutions. The article quoted an ODPP spokesperson as saying Mr Thangasamy’s matter was “prosecuted in accordance with the prosecution guidelines” and the issues raised in the matter “were appropriate to be considered by a jury”.
However, following publication of the article, a law firm acting for Ms Dowling in her personal capacity sent The Australian a concerns notice – a precursor to defamation proceedings – claiming the article conveyed false and defamatory imputations that she prosecuted sexual assault cases in a reckless manner or knowing them to be illegitimate, meritless and baseless.
Ms Dowling categorically rejected those imputations, saying that in Mr Thangasamy’s case, both the complainant and an important prosecution witness gave evidence at the trial that differed in substantial respects from their original statements of evidence given to the police.
The letter from law firm Arnold Bloch Leibler demanded the newspaper publish an apology and correction, and pay Ms Dowling’s legal costs in pursuing the matter. The Australian declined to issue an apology or pay Ms Dowling’s costs, pointing out that the article was the latest in a series of legitimate criticism directed at her public-facing and taxpayer-funded role. “As the NSW Director of Public Prosecutions, Ms Dowling holds the very important responsibility to prosecute serious crimes on behalf of the NSW community,” Mr Quill wrote. “Your client’s conduct, and the conduct of the office of the Director of Public Prosecutions, are matters which rightly carry a high degree of public interest. What is more, in an unprecedented development, your client and the ODPP’s conduct has been heavily criticised by those occupying some of the most senior legal roles in our state, being five sitting judges.”
The Australian told Ms Dowling any defamation proceedings would be defended to the fullest extent possible.
Toxic culture, punishment and suicidal lawyers: allegations against DPP’s office
Safe Work NSW is making enquiries about untested allegations of bullying, censorship, and ‘serious maladministration’ levelled at the office of chief prosecutor Sally Dowling SC.
Iron ore miner to fight Indigenous heritage ruling
Equinox Resources is taking on the WA government and one of the most powerful traditional owner groups in Australia after being refused permission to work on part of its mining lease.