A judge has delivered a seething spray against the state’s embattled top prosecutor after discovering DPP Sally Dowling SC secretly complained to the judge’s boss about the way she was doing her job.
District Court Judge Penny Wass SC was forced to delay the criminal case she was presiding over after being informed that Ms Dowling had emailed the court’s Chief Judge, Sarah Huggett on May 22, over legal calls she had made in three cases.
In the email, Ms Dowling made a threat to Justice Huggett that she would appeal Judge Wass’ calls if she made “a similar decision in the future”, Judge Wass revealed in a written judgment on May 26 for the case that can’t legally be identified.
Judge Wass told the court the timing of the Director of Public Prosecutions email was “highly inappropriate, particularly from an experienced Senior Counsel” given that she had to delay one of the cases to address the complaint.
“I do wish to assure the parties and any future litigants…that the correspondence from Ms Dowling has had absolutely no effect on my consideration of the relevant issues other than to further delay (the case)....,” Judge Wass told the court.
The flare up continues a developing war between Ms Dowling and a growing collection of District Court Judges.
Since last year, five judges have criticised Ms Dowling’s office for prosecuting rape cases they say were doomed to fail prompting an audit of every sexual case in NSW.
Legal experts said Ms Dowling may have broken legal conduct rules by complaining to the chief judge without informing the judge hearing the trial, the defence lawyers or the prosecuting lawyers on the case.
“If there is any complaint about a judge’s conduct during a case you can’t keep it a secret from any parties to the case - including the judge,” lawyer Paul McGirr said. “There has to be an opportunity for the judge to respond and right any potential missteps on the public record, otherwise there is a risk that a person won’t receive a fair trial.
“Justice not only has to be done, it has to be seen to be done.”
In her email, Ms Dowling took issue with an “emerging practice” by Judge Wass in cases which included ordering a witness to hand over their phone while they left the courtroom to take an emergency bathroom break.
Another included an order that Judge Wass gave for the disclosure of evidence in a second case which resulted in an accused pleading guilty.
A third saw Judge Wass direct a witness to produce their phone’s PIN code during a case for reasons that were undisclosed.
Ms Dowling told the chief judge that Judge Wass had “ignored the existing mechanisms” relating to the production of evidence.
Judge Wass found out about Ms Dowling’s complaint days later after being told about it by Justice Huggett.
“Indeed, the final remarks by Ms Dowling, as they contained a warning to me, made clear that they needed to be conveyed to me forthwith,” Judge Wass wrote.
Judge Wass criticised the timing of Ms Dowling’s complaint as it came when she was deliberating over two of the cases.
“Had this opinion been conveyed directly to me at any time, but particularly at this time, I would have regarded it as being highly inappropriate, particularly from an experienced senior counsel (like Ms Dowling),” Judge Wass wrote.
Judge Penny Wass takes aim at DPP Sally Dowling over complaints to boss | Daily Telegraph
