The powerful New South Wales privileges committee has been asked to examine whether the state’s prosecutors’ office breached parliamentary rules by using a judge’s submission to an inquiry to have her removed from trials.
Citing a potentially “chilling effect” for future witnesses, an upper house inquiry asked for an investigation into the conduct of Office of the Director of Public Prosecutions (ODPP). This came after a submission critical of the ODPP – made under parliamentary privilege by district court judge Penelope Wass – was used to argue she should stand aside from criminal trials involving the public prosecutor.
In a letter on Friday, the inquiry’s chair, Robert Borsak, asked the privileges committee to consider whether the use of Wass’s evidence was a breach of parliamentary privilege. He also requested that the committee consider whether the attempt to remove Wass from trials was in contempt of his inquiry.
“We are concerned that a very serious breach of privilege may have occurred,” Borsak said.
“We are further concerned that this action may be an attempt to intimidate an inquiry witness, with a chilling effect on future or potential witnesses,” he said, adding the bill of rights prevented material from parliamentary proceedings from being used in court.
It is the latest escalation in a running battle between Wass and the NSW Director of Public Prosecutions, Sally Dowling, which has played out during the parliamentary inquiry into identity protections for proceedings involving children.
In a 68-page submission to the inquiry last week, Wass called for the consideration of Dowling’s removal as the state’s top prosecutor. In the submission, the judge accused her of organising the leaking of details of an Indigenous child – whom Wass had allowed to perform a “Welcome to Country statement” before sentencing them for serious crimes – to Sydney radio station 2GB.
The name of the child was not broadcast during an October 2024 broadcast in which presenter Ben Fordham criticised the incident, but Wass alleged the leak was a breach of a prohibition on naming child defendants in criminal proceedings.
Wass alleged in her submission that Dowling had personally organised the leak. She said she had received threats and offensive comments from the public after the report was aired.
Dowling told the inquiry that the leak had occurred from the ODPP’s media unit, but denied she was personally involved in it. She alleged Wass had a “personal grievance” against her and the ODPP, and accused the inquiry of a “gross denial of procedural fairness”.
Wass has been among district court judges who has criticised the ODPP’s handling of sexual assault prosecutions under Dowling’s tenure.
Following Wass’s submission, the Australian newspaper reported that a public prosecutor had requested Wass recuse herself from a historic sexual abuse trial on Wednesday. A successful recusal application can lead to a trial being abandoned or retried.
The recusal motion has been adjourned to March
The Australian reported that another recusal application has been lodged in another case, and that further motions were expected..
Following the report, the committee had confirmed the transcript of the committee’s public hearing last Friday and the Wass’s submission were part of the DPP’s application for the judge to recuse herself, according to Borsak’s letter to the upper house president, Ben Franklin.
On Friday, the ODPP confirmed it had brought applications for Wass to stand aside from criminal cases in which the ODPP is a party on the basis of “apprehended bias”, saying it was relying on “publicly available” material from the inquiry.
“The ODPP contends the material is relevant to the question of apprehended bias and that adducing the evidence does not breach parliamentary privilege,” it said in a statement.
“Accordingly, the ODPP considers that reliance on the material could not amount to contempt of the parliament.”
The ODPP has sought to have the questions determined by the NSW court of appeal, saying the matter “raises important and complex legal and constitutional questions concerning the scope of parliamentary powers and the integrity of the judicial system under the Australian Constitution”.
Guardian Australia sought comment from Wass through the NSW District Court, which declined to provide a statement on the matter.
#Conflict #judge #NSW #prosecutors #referred #powerful #privileges #committee #intimidation #concern #South #Wales