Judge’s criticism of DPP ‘inappropriate without evidence’, watchdog says

A complaint filed against a District Court judge has been partly substantiated, with the judicial watchdog finding it was ‘entirely inappropriate’ for the judge to suggest there was a ‘secret policy’ in which prosecutors run meritless rape cases.

The NSW judicial watchdog has partly substantiated a complaint filed by NSW chief prosecutor Sally Dowling.

The NSW judicial watchdog has partly substantiated a complaint filed against a District Court judge, finding it was “entirely inappropriate” for the judge to suggest there was an “opaque, even secret, policy” that overrides prosecutorial guidelines in the state.

The complaint, filed by chief prosecutor Sally Dowling SC, found that while judges are “entitled to raise concerns” about serious matters relating to the administration of justice, judge Peter Whitford’s comments had the capacity to “undermine public confidence” in the court system and were made “without evidentiary foundation”.

The NSW Judicial Commission report – written by Court of Appeal president Julie Ward, former NSW Supreme Court judge Carolyn Simpson and professor Nalini Joshi – comes amid a spat between Ms Dowling and five District Court judges who have accused the state’s prosecution office of running rape trials that do not have enough evidence to convict.

In February, Judge Whitford delivered a costs judgment – R v Smith – saying that “time and time again” sexual assault proceedings are brought before the courts by the Office of the Director of Public Prosecutions “without apparent regard to whether there might be reasonable prospects of securing a conviction”.

He encouraged other judges to “expose” problems with the administration of criminal justice in NSW.

NSW chief prosecutor Sally Dowling SC. Picture: Max Mason-Hubers/NewsWire

The commission upheld four grounds relating to the complaint, including that Judge Whitford “deliberately” used the judgment to criticise Ms Dowling and the ODPP, that he “publicly attempted to influence prosecutorial decision making”, and that his comments “fell short of the ­appropriate standards for a judicial officer”.

It rejected, however, a ground that stated Judge Whitford failed to meet basic standards of competence, saying it would “be a rare judicial officer” who did not do make errors of law and judgment.

“These errors appear to be an aberration in an otherwise unblemished judicial career,” the ­report states.

In responding to Ms Dowling’s complaint, Judge Whitford apologised and said he understood “that the judgment gives rise to legitimate concerns about the wrongful consideration of an inferred basis for the actual decision to prosecute, and the perceived use of a judgment as a vehicle for criticism of the processes of the ODPP without the underpinning requisite to a fair process”.

“Further, I accept that the language I used in part of the judgment (while reflecting the strength of my concern) was inappropriate to the circumstances,” he said, as part of the Judicial Commission proceedings.

The commission ultimately found the complaint had been “partly substantiated” and should not be dismissed, but did not warrant Judge Whitford’s removal.

“It is not appropriate for ­judicial officers to engage in strident terms … in criticism of perceived trends in prosecutorial decision-making or speculation (in what can only be seen as highly inflammatory terms – ‘disturbingly Orwellian, even surreal’) as to the existence and operation of opaque or secret policies within the OPP,” the report reads.

“It is difficult to see anything more likely to undermine public confidence in the administration of justice in this state (and it was both wholly without evidentiary foundation and without affording procedural fairness to the director).”

The commission referred the matter back to District Court chief judge Sarah Huggett, to facilitate “counsel and support” for Judge Whitford.

In August, the commission upheld a complaint lodged by Ms Dowling against judge Robert Newlinds, after he alleged there was an “unwritten policy” at the ODPP that sexual assault cases are run “without a sensible and rational interrogation” of the complainant.