Restart risk: Legal feud between Sally Dowling and Penelope Wass hits eight cases
An explosive feud between the NSW chief prosecutor and a sitting judge has escalated in prosecutors demanding the judge be removed from up to eight cases due to alleged apprehended bias.
An extraordinary feud between NSW chief prosecutor Sally Dowling SC and District Court judge Penelope Wass could lead to the judge’s removal from eight criminal cases – including a four-year-long historic sexual abuse matter – after prosecutors demanded she step aside following her explosive parliamentary submission accusing Ms Dowling of misconduct.
Crown prosecutor Brett Hatfield SC, appearing before Judge Wass on Wednesday, said the ODPP had filed a recusal application in the historic child sexual abuse trial. If the recusal application is granted, the case – which involves several elderly cancer patients and has sat for 14 days in between hospital visits for the sick accused – could be abandoned and retried.
Mr Hatfield said recusal applications were underway for at least one other matter before Judge Wass on Friday, and indicated that the ODPP would likely seek to recuse Judge Wass from another six cases.
The application came after Judge Wass filed her submission to an inquiry into identity protection of children in court proceedings, which included evidence suggesting the ODPP disclosed restricted information to radio station 2GB about an Indigenous child who she had allowed to perform a cultural ceremony in her courtroom.
She said the ODPP leaked the information to damage her reputation. Ms Dowling, appearing before the inquiry last week, admitted her staff leaked the restricted information, but strongly denied she had told them to disclose it.
Mr Hatfield was supported by four solicitors and two barristers when appearing in court on Wednesday.
He accepted that the recusal motion – understood to have been filed on the basis of apprehended bias – had nothing to do with the running of the present case nor any complaint of “actual bias”.
The accused’s barrister, Tania Evers, said the complainants were elderly, and some were sick and had cancer. “For them to have to go through a retrial has, your honour, considerable concerns for me,” she told the court.
Ms Evers said she had not had time to review the application sent on Friday and present a response to the court, which she said would amount to “procedural unfairness to me”.
Judge Wass said the trial before her had been “very carefully managed” and with the “cooperation and good will of all involved” due to regular interruptions because of the accused’s poor health.
The court heard the allegations dated back to the 1950s, and had taken four years to get to trial.
Judge Wass asked Mr Hatfield whether the ODPP sought to recuse her from all ODPP proceedings currently before her. He responded: “As presently instructed, yes, Your Honour”.
Justice Wass questioned whether those instructions would change. “I’m trying to manage a very busy list in the next two weeks. If you wish to put those applications on, they should be on,” she said.
Mr Hatfield said an application was being prepared for Justice Wass’s matters set down for Friday, but he did not know anything further about other applications.
Judge Wass raised the issue of parliamentary privilege, asking Mr Hatfield directly whether Ms Dowling was aware that the affidavits included material that was the subject of parliamentary privilege.
“I have to ensure I’m not in breach of the law if I allow this to be read,” she said.
After seeking instructions, Mr Hatfield said the evidence was “relevant and admissible” and not a breach of parliamentary privilege.
The recusal motion was adjourned to next March for Ms Evers to provide submissions on whether an affidavit, which references parliamentary material, is admissible.
The events mark a significant escalation in the feud between Judge Wass and Ms Dowling, which began when the judge – along with other members of the bench – accused the prosecution office of shepherding “incredible and dishonest allegations of sexual assault” through the courts.
Ms Dowling has always denied the accusation.
Last year, Judge Wass filed a formal complaint against Ms Dowling with the Office of the Legal Services Commissioner accusing her of attempting to “exert influence” over the judiciary when going over her head to the chief judge.
The Bar Council dropped the complaint due to jurisdictional issues.
In her parliamentary submission, Judge Wass said she permitted the child to perform the cultural ceremony as a relevant part of his evidence, and with the consent of both the prosecution and the defence.
Ms Dowling, appearing before the inquiry, said Judge Wass did not give either party the opportunity to seek instructions before the ceremony was performed.
