By Michaela Whitbourn
A NSW District Court judge has come under fire from the judicial watchdog for “imprudent” and “rash” comments he made in a judgment in a sexual assault case, in a second blow to the court within months.
But high-profile Sydney silk Arthur Moses, SC, said District Court Judge Peter Whitford was “a highly regarded judge in a busy trial court which regrettably carries the burden of the majority of sexual assault trials” in NSW.
NSW District Court Judge Peter Whitford, and, right, Sally Dowling, SC, NSW’s first female director of public prosecutions.
The state’s top prosecutor, Sally Dowling, SC, has been at loggerheads with a small group of District Court judges following highly publicised judgments containing strident criticisms of her office and its handling of sexual assault cases.
Dowling lodged a NSW Judicial Commission complaint against Whitford after he claimed in a decision in February that the Office of the Director of Public Prosecutions (ODPP) applied “opaque, even secret, policies” rather than published guidelines when considering which cases to prosecute.
Whitford’s decision on legal costs was published after a not-guilty verdict in a sexual assault trial. He explicitly endorsed comments made by a judicial colleague, Robert Newlinds, in December.
Newlinds’ comments were condemned by the Judicial Commission earlier this year after Dowling made a separate complaint.
‘Fell short of standards’
In a report on Tuesday, a Judicial Commission conduct division – a three-person panel headed in this case by Court of Appeal president Julie Ward – upheld Dowling’s complaint in part. It said Whitford’s criticisms of the ODPP “fell short of the appropriate standards of a judicial officer”.
The comments risked undermining public confidence in the administration of criminal justice in NSW, the report said.
“[The] suggestion of an opaque or secret policy within the DPP to act otherwise than in accordance with its published guidelines is extraordinary and raises a real concern as to the administration of justice,” the conduct division said.
“It had no evidentiary foundation and created the appearance of lack of judicial impartiality.”
It was “entirely inappropriate” for Whitford to express his concerns in the manner and forum in which he did, the panel said.
Moses, a former Law Council of Australia president, said on Wednesday that sexual assault trials “are notoriously difficult for all involved” and all the court’s judges “work incredibly hard to ensure fair trials are conducted”.
He said the commission’s “measured” report recognised, appropriately, the authority and independence of the court’s chief judge “to consider for herself what, if anything, should follow” from its conclusions.
Regret and apology
The Judicial Commission said Whitford’s conduct was “an aberration in an otherwise unblemished judicial career”, and he had accepted there were errors of law and judgment in his decision.
He had “expressed his regret and apology for that conduct”, although not directly to Dowling, and had said the “staff of the ODPP are to be commended for the difficult work that they do”.
‘[The] suggestion of an opaque or secret policy within the DPP to act otherwise than in accordance with its published guidelines is extraordinary and raises a real concern as to the administration of justice.’
Judicial Commission
The commission referred the report to District Court Chief Judge Sarah Huggett “for such counselling and support” as she considered appropriate. No further recommendations were made.
The panel concluded Whitford deliberately used his judgment as a “tool” for public criticism of Dowling and her office, publicly attempted to influence prosecutorial decision-making, and failed to afford the DPP procedural fairness by inviting submissions before making the comments.
Whitford had said in his decision that there was “something disturbingly Orwellian, even surreal” about what he claimed was the ODPP practice of publishing prosecutorial guidelines while applying “secret” policies.
He said it was “at least the recent experience of this court that time and time again proceedings are brought without apparent regard to whether there might be reasonable prospects of securing a conviction”.
But the Judicial Commission said Whitford had “expressly acknowledged” in a written response that there was “no evidence about any pattern of apparently unsustainable cases coming before the court … and that it was inappropriate to have included reference to his general conclusions even in a qualified way”.
The conduct division appointed to examine the complaint comprised a current judge, a former judge, and a community member.
The panel agreed it was “imprudent” and “rash” of Whitford to endorse some of Newlinds’ remarks about the role of prosecutors. The Judicial Commission said only Dowling or a deputy director of the DPP, not the prosecutor, could withdraw matters.
The text of Whitford and Newlinds’ decisions has now been restricted online. The Judicial Commission panel said that Whitford had, “quite appropriately”, voluntarily removed his judgment from public access.
A separate Judicial Commission panel, headed by NSW Chief Justice Andrew Bell, said in a scathing report in August that Newlinds’ own criticisms of the ODPP “render it inappropriate that he sit in state criminal matters for the foreseeable future”.
This recommendation was not made in Whitford’s case and the commission’s criticisms were more measured.
The District Court declined to comment.
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