Second complaint filed against NSW DPP Sally Dowling

Sally Dowling has been hit with a second formal complaint after a criminal barrister reported her to the NSW legal watchdog, arguing her conduct in a sexual assault matter may have prejudiced his client.

NSW chief prosecutor Sally Dowling SC.

Chief prosecutor Sally Dowling SC has been hit with a second formal complaint after a criminal barrister reported her to the NSW legal watchdog, arguing her conduct in a sexual assault prosecution may have prejudiced his client.

Barrister Alan Conwell filed the grievance with the Office of the NSW Legal Services Commissioner about two weeks ago, raising concerns about Ms Dowling making a secret complaint to NSW chief judge Sarah Huggett in the middle of a trial he was acting in.

Ms Dowling made the complaint about judge Penelope Wass, alleging the judge was jeopardising the right to a fair trial by directing witnesses to present their phones as evidence, and threatened to “take the matter further” if the ­directions continued.

Ms Dowling’s complaint was made “only days” before Judge Wass was to deliver judgment in two sexual assault matters – R v SF and R v Stenner-Wall.

The complaint was not disclosed to Mr Conwell, who acted for the defendant in R v SF. Mr Conwell’s client was ultimately found not guilty on all counts.

The Australian understand Mr Conwell’s complaint is highly critical of Ms Dowling.

The Australian this week revealed Judge Wass had also made a formal complaint against Ms Dowling to the OLSC, and has since labelled Ms Dowling’s correspondence with the chief judge “inappropriate and irrelevant”.

Judge Wass told the Taree District Court on Tuesday her complaint to the OLSC concerned Ms Dowling’s ex-parte email to Chief Judge Huggett, in addition to comments made by a spokesperson for the Office of the Director of Public Prosecutions to this masthead on June 7.

“In short, the director’s complaint calls into question my ability to act within the bounds of my judicial power and to conduct a fair trial,” she said. “The conduct complained of was not the subject of appeal in either proceeding.”

She continued: “Following the events canvassed in the SF and Stenner-Wall judgments, I made a complaint to the Office of the Commissioner of Legal Services against Ms Dowling.”

“The complaint procedure is ongoing, and the contents of my complaint are confidential. I consider it sufficient to disclose that the substance of my complaint principally concerns two issues: Ms Dowling’s conduct as set out in the two judgments mentioned earlier, and comments made by a spokesperson for the director, which were reported in The Australian on June 7, 2024,” she said.

NSW District Court judge Penelope Wass.

The director’s spokesperson told The Australian on June 7 that Ms Dowling had not communicated with Judge Wass during proceedings, and said conversations between Ms Dowling and the chief judge were “confidential”.

“It is entirely appropriate for the director to discuss with the Chief Judge, as the head of jurisdiction, matters of mutual concern as they arise,” the spokesperson said at the time.

Judge Wass on Tuesday told parties at Taree it was “appropriate that I disclose the existence of the two complaints to you”.

“The reason being that if I was to make an order adverse to any party, and that party later found out that I was at the time the subject of a complaint from, and had indeed filed my own complaint against Ms Dowling, that party might have a reasonable basis to wonder whether I was inappropriately influenced in my decision making,” she said.

“If any party is concerned about any effect those issues might have had or might have in the future and wishes to make an application, please let me know. If an application is made, I will not be offended.”

Judge Wass said she considered Ms Dowling’s “warning” to her, via the chief judge, to be “inappropriate and irrelevant to my decision-making process”.

“It has not had any bearing on the decisions I made after receiving the complaint,” she said. “Likewise, I do not believe it has affected my ability to deal impartially with matters. That will remain the case going forward.”

NSW Attorney-General Michael Daley told The Australian he is “unable to comment on complaints, or reported complaints, made against legal practitioners”.

NSW Attorney-General Michael Daley.

“The Director of Public Prosecutions is an independent statutory office holder. The Director of Public Prosecutions, and the judiciary, make decisions independent of government,” a spokesperson for Mr Daley said.

“It is not appropriate for the Attorney-General to direct or attempt to direct the Director of Public Prosecutions in relation to the conduct of specific prosecutions.”

Ms Dowling declined to comment.