Police probe NSW prosecution office over leaks
The investigation has revolved around the alleged leak by the office of the DPP to a commercial radio outlet of legally restricted information about an underage Aboriginal offender.
The investigation has revolved around the alleged leak by the office of the DPP to a commercial Sydney radio outlet of legally restricted information about an underage Aboriginal offender.
Police are investigating allegations that the leak to 2GB’s Ben Fordham was motivated by a staffer in the ODPP in a bid to damage the reputation of a judge who had been critical of DPP Sally Dowling SC’s conduct, but at present it is unclear why the material was leaked.
Officers tasked with investigating the matter have been making inquiries within the ODPP since late last year, after 2GB host Ben Fordham aired an “exclusive” about an alleged “violent criminal” who was permitted by NSW District Court judge Penelope Wass SC to do a Welcome to Country before he was sentenced.
The story aired on 2GB the day after the ODPP had been asked questions by The Australian about an article with the full details of a formal complaint lodged by Judge Wass against Ms Dowling, in which she alleged the DPP had tried to “exert influence” over the judiciary.
The incident marks the latest revelation in growing tensions between Ms Dowling’s office and judges in the state district court, three of whom Ms Dowling has reported to the judicial watchdog over comments they have made critical of her office.
The Australian can reveal NSW Police believe a member of the ODPP media unit took a photo of an intranet page which included the details of the matter relating to the underage Aboriginal defendant and, in breach of the ODPP’s internal policies, leaked it to 2GB.
Officers have contacted a number of ODPP staff to discuss the matter, some of whom have declined to give a statement. They have also approached NSW opposition legal affairs spokesman Alister Henskens who provided comment in Fordham’s broadcast and described Judge Wass’s conduct as “entirely inappropriate”.
The contents of the image, which included the full name of the underage defendant, was reported by Fordham, who slammed Judge Wass for having “in my humble opinion, a shocker” when she invited the child to perform the cultural ceremony prior to sentencing.
Fordham did not report the defendant’s name, but it was included in the image provided to him by the ODPP.
The judge, Fordham said, told the court she would be “happy” for the defendant to give a Welcome to Country “in any court she presided over”.
The Australian understands the child gave the Welcome to Country as a relevant part of his evidence, and that Judge Wass sought and obtained the parties’ consent to take the evidence.
After the case was over, Judge Wass told the defendant she would let him perform the ceremony in the future, as long as he was never in trouble with the police again, otherwise the invitation would not be open to him.
Fordham broadcast the story on the morning of Friday, October 25.
The day prior, this masthead had put questions to the ODPP media team – with a 6pm deadline – regarding Judge Wass’s formal complaint against Ms Dowling to the Office of the Legal Services Commissioner.
In the complaint, Judge Wass alleged Ms Dowling engaged in “ethically questionable” behaviour when engaging in ex-parte communications with NSW District Court chief judge Sarah Huggett in the middle of a trial, without the judge’s knowledge or the knowledge of the defence.
When Ms Dowling was asked about the complaint in October, an ODPP spokesperson said she had formally responded to Judge Wass’s complaint, and it would be inappropriate to comment further.
The Australian – prior to the Fordham broadcast and for no reason relating to 2GB – had decided to publish the story about the complaint on Saturday, October 26 not on the Friday as initially planned.
The Australian is not suggesting that the story of the child’s Welcome to Country was leaked to 2GB to take the focus from Judge Wass’s complaint against Ms Dowling, nor that Ms Dowling was personally involved in the leak. The motivation for leaking the material is unknown.
The Australian put a detailed list of questions to Ms Dowling about the matter. An email response from an unnamed staff member said “the ODPP declines to comment”.
NSW Police also declined to comment as a current investigation is under way.
The leak has become the latest development in a growing rift between Ms Dowling’s office and some judges in the NSW District Court, some of whom have accused the office of running rape trials that do not have enough evidence to convict.
Ms Dowling filed complaints with the NSW Judicial Commission against three of the judges – Peter Whitford, Robert Newlinds and Sean Grant – alleging critical remarks they made about her and the office were inappropriate.
The commission upheld the complaint against Judge Newlinds and partially upheld that against Judge Whitford and Judge Grant.
As a result of the criticism, Ms Dowling launched an audit of all sexual assault cases listed for trial last year to ensure they were being run in line with the prosecution guidelines.
The full results of the audit have not been made public, but Ms Dowling told state parliament 330 matters set down for trial between April and December last year had been audited, and 15 had been discontinued.
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