The Leak
In October 2024, a 17-year-old Aboriginal defendant from Taree appeared before District Court Judge Penelope Wass SC DCJ via video link. She permitted him to deliver an Acknowledgement of Country before his sentencing. She then imposed the maximum penalty.
Within weeks, the proceedings had been reported on 2GB by Ray Hadley and Ben Fordham, who had received a screenshot of restricted court material identifying the boy by name. The screenshot came from the ODPP’s media office.
Judge Wass’s 68-page submission to the committee described the disclosure as “not accidental” — the information was “provided deliberately, reckless as to” the boy’s identification. No media had attended the proceedings or previously taken any interest in the case. The sentence was not appealed. The case, she wrote, “bore no significant public interest.”
When the story broke, Dowling SC told the Chief Judge that to her knowledge the ODPP had not made the disclosure — a statement the submission describes as “now known to be inaccurate.” The NSW Police investigation established that the junior media officer had taken the screenshot and passed it to “a superior.” After initial cooperation, ODPP officers declined to provide formal statements to police. In May 2025, Judge Wass’s solicitor received a call from Tom Malone, Managing Director of Nine Radio — 2GB’s parent company — who said the media officer had made the disclosure on instructions from Dowling SC. That account is recorded in a solicitor’s file note. Dowling SC has denied it.
Dowling SC subsequently admitted her media team had leaked restricted court material to 2GB that formed the basis of the broadcast. No charges were laid. The ODPP engaged Norton Rose Fulbright to conduct what it called an independent investigation, but ran it under legal professional privilege. NRF declined to answer basic questions from Judge Wass about who was investigated or what was found. One employee received a formal caution and training. The ODPP considered the matter closed.
Hadley told his listeners that Judge Wass had already lodged a Legal Services Commissioner complaint against the DPP — the complaint arising from the ex parte communication to the Chief Judge that Judge Wass had not yet disclosed publicly. 2GB had not merely received information about the Welcome to Country case. It had received background on the standing dispute between Judge Wass and the DPP.
The ODPP leaked a child’s name to a commercial radio station. The judge reported it to a parliamentary committee. The ODPP used that report to seek her removal from her cases.
The Ex Parte Email
On 22 May 2024, DPP Sally Dowling SC emailed the Chief Judge of the District Court, Justice Sarah Huggett, without the knowledge of the defence, and without the knowledge of the Crown counsel actually briefed in the relevant trials. The subject was what she described as an “emerging practice” by Wass SC DCJ of directing witnesses to produce their mobile phones.
The three instances underlying that characterisation: a direction that prevented a witness taking her phone to the bathroom during an unscheduled break in cross-examination; a direction that produced disclosure the Crown had not made, after which the accused pleaded guilty to the relevant counts; and an earlier 2021 matter. Wass SC DCJ had been on the bench for more than eight years. None of the three decisions had been appealed. In two of the three, the parties had not objected at all.
The email also foreshadowed that the DPP “will consider steps she considers to be properly available to her to seek judicial review should further directions of this nature be made” — delivered, as Judge Wass SC DCJ noted, while she was deliberating on verdict and sentencing in two of the matters.
In the published judgments [2024] NSWDC 249 and [2024] NSWDC 250, Her Honour characterised the correspondence as “an ex parte communication with the Court by one party to the litigation during the course of two ongoing proceedings.” She observed that the DPP’s legal critique omitted any reference to the Evidence Act or applicable case law on the call for documents, and that the DPP had “not particularised any rights to a fair trial of either party that had been infringed.” As for the DPP’s legal opinion on evidence law: “I have given it the consideration that I think it merits.”
Judge Wass SC DCJ subsequently filed a formal complaint with the Office of the NSW Legal Services Commissioner about the correspondence. No public outcome has been reported.
Complaints Against Judges
The DPP lodged Judicial Commission complaints against two other District Court judges following adverse rulings in sexual assault proceedings. Conduct Division findings were made against both.
Under the Judicial Officers Act 1986, Conduct Division reports are confidential. The Commission publishes them only where parliamentary removal is warranted — a threshold reached four times in 35 years. Neither judge met it.
The ODPP published both reports on its own website.
The Whitford complaint contained something more. In a statutory declaration filed with the Commission, Dowling SC included allegations about Judge Wass’s past private relationship with Judge Whitford, suggesting it had somehow influenced his judgment. Whitford denied the allegation.
The Commission was unimpressed:
“Lest there be any doubt, we consider that the reference to those matters in the Complaint was unfortunate and we make no finding as to (nor have we placed any weight on) those assertions by the Director.”
It added that the references to the judicial officer’s private life “were provocative and unnecessary.” Dowling SC did not withdraw the allegations — not after Whitford’s denial in April 2024, not after the Commission’s published findings in November 2024.
Judge Wass complained to the Bar Association in November 2024, asking whether including false, unretracted personal-life allegations in a Judicial Commission complaint amounted to unsatisfactory professional conduct. She had made a prior complaint in June 2024 about the ex parte email to the Chief Judge. Both complaints were declined on the same jurisdictional ground: the Director had been acting in her capacity as DPP, not as a barrister. Two complaints. The same answer each time. The institutional architecture that governs legal practitioners simply does not reach the DPP acting as DPP.
The Judge at the Centre of It
No Conduct Division finding has been made against Judge Wass SC DCJ. Every practitioner knows what a judge is supposed to do when a prosecution should never have been brought, or when the Crown walks in unprepared, or when police have cut corners and called it an investigation. You put it in the reasons. That is the job.
One thing to understand about this record: in a jury trial, the judge writes nothing. No verdict, no reasons. Published judgments in criminal matters exist only where the judge is sentencing, ruling on an interlocutory question, or — as in CBM and DS — granting a costs certificate after an acquittal. A costs certificate requires a formal finding that the prosecution was unreasonable from the outset. The jury had already spoken.
In R v DS [2022] NSWDC 441, a jury acquitted on all three counts in 25 minutes. Her Honour said so: “A prosecutor is required to do more than shepherd incredible and dishonest allegations of sexual assault through the criminal justice system, leaving it to the jury to carry the burden of decision making that ought to have been made by the prosecutor.”
In R v Page [2025] NSWDC 210, the Crown relied on a District Court decision and failed to bring to Her Honour’s attention two directly relevant cases that cut against her position — including KW v R [2013] NSWCCA 31, a binding Court of Criminal Appeal authority. Her Honour located both decisions herself.
In Dhaliwal v R [2025] NSWDC 95, costs of $33,257 were ordered against the Crown: “The Local Court Prosecutor conducted the hearing without reasonable cause. Once this was clear… Sergeant Jurkovic did not withdraw, but rather argued for a position that was untenable.”
None of these findings was disturbed on appeal. A judge calling out prosecution failures is not bias. It is the function the bench exists to perform.
This is not a controversial proposition. NSW Police has standing internal directions — Directions for Reporting Adverse Judicial Comments, last amended January 2025 — requiring officers to formally record and escalate adverse judicial commentary as a routine administrative matter. The NSW Court of Criminal Appeal criticised Crown Prosecutor Mark Tedeschi SC by name in Wood v R (2012) 84 NSWLR 581. None of that was treated as evidence of judicial bias.
The Conduct Division’s objection to Newlinds SC DCJ and Whitford SC DCJ was not that they had criticised the prosecution in published reasons. It was that they had made sweeping institutional allegations without an evidentiary foundation and without giving the ODPP any opportunity to respond. The criticism of Judge Wass SC DCJ is different in kind.
The Submission and the Recusal
In November 2025, Judge Wass made a 68-page submission to Portfolio Committee No 5 — the NSW Legislative Council committee conducting an inquiry into identity protections for children in court proceedings. The forum was a parliamentary inquiry reviewing the statutory framework her court enforces. She told it what had happened.
The submission went beyond a description of events. It asked the committee to consider whether the ODPP’s Senior Officers should be referred to the Governor for removal under the Director of Public Prosecutions Act 1986 for “incompetence or misbehaviour.”
On 9 December 2025 — five days after the submission was published — Crown prosecutor Brett Hatfield SC appeared before Judge Wass and applied to have her removed from a four-year historical sexual abuse trial on the basis of apprehended bias. The basis: her parliamentary submission criticising the DPP. He foreshadowed similar applications in her other matters. Judge Wass described the situation as uncharted territory and described the prosecution’s conduct as bad form.
Robert Borsak MLC referred to the Parliamentary Privileges Committee the question whether using an inquiry witness’s submission to remove her from a trial might constitute contempt of Parliament.
The constitutional question — whether Article 9 of the Bill of Rights 1688 protected the submission from being used in the recusal application — went to the Court of Appeal.
What the Court of Appeal Actually Said
DPP (NSW) v President of the Legislative Council of NSW [2026] NSWCA 20, constituted by Leeming JA, Stern JA and Griffiths AJA, held that Article 9 did not prevent the DPP relying on the submission. The Kable principle — protecting the institutional integrity of courts exercising federal jurisdiction — cut down the operation of parliamentary privilege to the extent it would otherwise prevent a court from being constituted by a judge free from apprehended bias. The DPP won the jurisdictional question. The recusal application itself remains to be determined.
The Court’s observations at paragraph 13 cut in more than one direction:
“[I]t is highly unusual for a sitting judicial officer to make a submission to a Parliamentary Committee bearing upon the conduct of any particular litigant before the judicial officer. None of the parties or interveners identified any comparable case, and we are aware of none.”
What the Court expressly did not say was that the submission was wrong on the merits. It said nothing about whether the ODPP should have leaked a child’s name to a commercial radio station. It was deciding a narrow question of constitutional law and it took care to go no further.
The context in which the submission was made is not obviously a misuse of judicial office. A judge confronted with what she regarded as a serious breach of the protections her court enforces took the matter to the elected body responsible for reviewing those protections.
The Pattern
Across 2023 to 2026, the NSW DPP has: lodged Judicial Commission complaints against two judges following adverse rulings; published the confidential results of those complaints on her own website; sent an ex parte communication to the Chief Judge about a sitting judge’s interlocutory decisions while those matters were under deliberation; applied to have that judge removed from all her current proceedings on the basis of a submission to a parliamentary inquiry; and been the subject of formal complaints to the Legal Services Commissioner about that conduct.
The Court of Appeal expressly declined to resolve whether the cumulative pattern has a chilling effect on judicial independence that the law ought to address.
There is also a separation of powers dimension that has not yet been squarely put. The DPP is an officer of the executive. Each mechanism deployed — Judicial Commission complaints, an ex parte communication to the Chief Judge, a recusal application grounded in a judge’s parliamentary submission — is executive pressure on the judicial branch.
When judges know that adverse findings against the prosecution can result in a complaint, a confidential statutory process, the removal of their reasons from the public record, and now a recusal application — the chilling effect is apparent. Criminal practitioners in NSW courts are well placed to assess whether the prosecution standards identified in these judgments reflect the cases they see every day. The question of what happens to judges who name those problems is now a constitutional one.
The bench has to be able to hold the prosecution to account without that accountability being turned against it. That is the foundation of judicial independence.