‘Stitch-up’: Legal leaders push back on ODPP oversight recommendation

The leak was said to have occurred weeks after Judge Wass sentenced the person for serious criminal offences and then asked if he would deliver the “Welcome to Country”. The committee claimed the leak was intended to “provoke criticism” of Judge Wass’ invitation.

Dowling has denied authorising the information leak.

“This kind of ‘media management’ by the ODPP is inherently dangerous and potentially intimidatory of the various participants in the criminal justice system, especially given the vast amount of information possessed by the ODPP,” the committee said.

Within its seven recommendations, the committee proposed the NSW government establish a parliamentary committee that would provide oversight into the ODPP, in much the same way similar groups oversee the Independent Commission Against Corruption, the Ombudsman, and the Law Enforcement Conduct Commission.

The Law Society of NSW and the NSW Bar Association were critical of this recommendation, urging “profound caution in considering any reform which may risk undermining prosecutorial independence”.

“It is a fundamental principle of our justice system that decisions to initiate and maintain criminal prosecutions remain free of interference.

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“This principle was foundational to the formal establishment of an independent prosecutorial body, some 40 years ago through the Director of Public Prosecutions Act 1986, consistent with other Australian jurisdictions,” the Law Society and Bar Association said.

Another of the committee’s recommendations proposed that the Attorney-General consider establishing a formal inquiry with compulsory powers to examine its findings, “with a view to determining whether there are grounds” to remove Dowling.

Addressing the media, Attorney-General Michael Daley called it the “worst parliamentary committee report” he had ever seen.

“This was supposedly an inquiry into identity protections for proceedings involving children. It wasn’t. It was a stitch-up from the outset.

“The report makes findings that are unsupported by the evidence. It reaches conclusions that are contrary to sworn testimony. It treats mere suspicion and speculation as fact,” Daley said in a statement.

Daley also told the ABC he would not be “wasting millions of dollars in taxpayers’ money” by setting up the special commission.

The report not only canvassed the ongoing feud between Dowling and Judge Wass, but also reflected on how the inquiry stoked the flames.

Four days after the committee’s first hearing, the ODPP applied to have Judge Wass recuse herself from a matter she was presiding over on the grounds of apprehended bias, citing a submission to the committee that was “highly critical” of the prosecutor’s office.

This application led to Dowling’s referral to a privileges committee for possible contempt, and then to the ODPP’s proceedings in the NSW Court of Appeal to seek declaratory relief that Dowling did not infringe on the Bill of Rights 1689 by seeking to adduce the judge’s submission in the recusal application.

The court declared the bill did not operate validly to prevent Dowling from making, and the District Court from determining, the recusal application on the ground of apprehended bias by reference to Judge Wass’ submission.

In submissions to the inquiry, Dowling said the circumstances surrounding the ODPP’s evidence – particularly the lack of notice about Judge Wass’ submissions – “bore the appearance of an ambush”.

The committee acknowledged it would have been preferable to have given the ODPP notice, but claimed it was “not required” to do so.