District Court Judge Penelope Wass has defended her decision to submit a statement to a NSW parliamentary committee, asserting that her actions were necessary to protect judicial independence. The judge’s comments, delivered in a formal decision on Friday, follow a controversial parliamentary report released Tuesday that found Director of Public Prosecutions (DPP) Sally Dowling, SC, authorized her office to leak negative information about Judge Wass to a media outlet in 2024 and subsequently provided false evidence regarding the incident.
Did You Know? The NSW Court of Appeal previously noted that it was unaware of any other case where a sitting judge submitted a statement to a parliamentary committee regarding the conduct of a litigant in a matter currently before that judge, describing the situation as extraordinary.
Judicial Independence and the Recusal Dispute
Judge Wass’s submission to the upper house justice and communities committee was central to an application by the Office of the Director of Public Prosecutions (ODPP) for her to recuse herself from several criminal cases. The ODPP argued that the judge’s public accusations—that the office provided information to 2GB radio to “embarrass and defame” her—created an appearance of apprehended bias.
In her Friday ruling, Judge Wass declined to recuse herself in three of the four cases, stating that her parliamentary submission did not involve individuals currently appearing before her. However, she opted to recuse herself from a fourth case at the sentencing stage, noting it was “prudent” to do so despite not reaching an affirmative conclusion that bias existed.
Parliamentary Findings and Legal Criticism
The upper house inquiry, which initially aimed to examine statutory identity protections for children, shifted focus to the conflict between Judge Wass and the DPP. A 4-3 majority of the committee concluded that the 2GB story was “pitched in retaliation for Judge Wass’ previous criticisms of the [ODPP].”
The report has drawn sharp criticism from stakeholders within the justice system. Attorney-General Michael Daley characterized the inquiry as a “stitch-up,” while former DPP Nicholas Cowdery, KC, labeled the findings “outrageous.” Conversely, former NSW Bar Association president Arthur Moses, SC, emphasized that the committee’s findings regarding the DPP’s evidence were “serious” and should not be ignored. Former senior Crown prosecutor Mark Tedeschi, KC, disputed the committee’s conclusions entirely, asserting they “fly in the face of the only evidence available.”
Next Steps for the NSW Government
The state government is currently moving to verify the legitimacy of the committee’s report. Attorney-General Michael Daley confirmed on Friday that the Crown Solicitor’s Office has engaged Noel Hutley, SC, to conduct an independent review of the findings and recommendations. The majority of the committee has suggested that the government consider establishing a new, permanent parliamentary oversight body for the ODPP, a proposal that has received qualified support from Arthur Moses, SC, provided the body’s role remains limited to administration and funding rather than specific prosecution decisions.
Frequently Asked Questions
Why did Judge Wass make a submission to the parliamentary committee?
Judge Wass stated that she was “obliged to take appropriate steps to resist a clear attack on my independence by a powerful stakeholder in the criminal justice system” without the support of the chief judge or the attorney-general.
What did the parliamentary committee find regarding the DPP?
The 4-3 majority of the committee found that DPP Sally Dowling, SC, authorized her office to leak a negative story about Judge Wass to a media outlet in 2024 and that she provided false evidence to parliament regarding her involvement.
What is the next step for the government following the report?
Attorney-General Michael Daley has instructed the Crown Solicitor’s Office to engage Noel Hutley, SC, to conduct an independent review of the committee’s report and recommendations.
How do you believe the balance between parliamentary oversight and judicial independence should be maintained in the future?
