Speaker 1: From The Australian. Here's what's on the front. I'm Claire Harvey.
Speaker 1: It's Friday, July tenth, twenty twenty six. Tony Abbott's mission
Speaker 1: to stop people smuggling boats prompted some bureaucrats to warn
Speaker 1: they were worried the government was breaking the law or
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Speaker 1: this weekend. Judges versus prosecutors, politicians versus lawyers. There's an
Speaker 1: intriguing power struggle going on in New South Wales that
Speaker 1: raises big questions about the separation of powers and how
Speaker 1: our criminal justice system really works. Our own Elie Dudley
Speaker 1: has been breaking all the scoops.
Speaker 2: She's here in just a moment.
Speaker 1: Ellie Dudley is The Australian's National Chief of Staff and
Speaker 1: she's been following a story that seems as old as
Speaker 1: the colony of New South Wales. Ellie, it's a fight
Speaker 1: at the highest levels of the New South Wales judiciary
Speaker 1: and legal system.
Speaker 3: To breaking news now and an explosive parliamentary report has
Speaker 3: found Chief Prosecutor Sally Dowling.
Speaker 4: Said to have given given false evidence to Parliament and
Speaker 4: should face a formal inquiry into whether she should be sacked.
Speaker 1: This is Sally Dowling, the Director of Public Prosecutions in
Speaker 1: the state, who's got herself tangled up in a disagreement
Speaker 1: i would say, between politicians herself, and there are judges
Speaker 1: and other.
Speaker 2: Senior legal figures involved as well.
Speaker 1: First of all, Sally Dowling is complaining that she's been
Speaker 1: criticized by politicians for some actions taken by her offers
Speaker 1: and the legal fraternity rallied around Sally Dowling in quite
Speaker 1: a remarkable way. What are they saying and why are
Speaker 1: they backing her in so hard?
Speaker 4: Yeah, So in order to answer that question, Claiut track
Speaker 4: it back a little while. So basically, there was an
Speaker 4: accusation that was put against Sally Dowling before a parliamentary committee. Now,
Speaker 4: this parliamentary committee was set up to probe how the
Speaker 4: identities of children are protected in legal proceedings, because, as
Speaker 4: we know, you can't name kids when they're before the courts.
Speaker 4: So this parliamentary committee was set up and as part
Speaker 4: of that, this bombshell submission was lobbed by a new
Speaker 4: South Wales District Court judge called Penelope Wass. Penelope Wass
Speaker 4: had been critical of Sally Dowling and her office in
Speaker 4: the past, but she lodged this sort of sixty odd
Speaker 4: page submission with this inquiry accusing Miss Dowling and her
Speaker 4: office of leaking information to a commercial radio station two
Speaker 4: GB in order to damage her reputation.
Speaker 2: Okay, so let's track it back.
Speaker 1: Penelope was was hearing a matter in which a young
Speaker 1: man of Aboriginal descent was involved. He was accused she
Speaker 1: allowed him in court to give a welcome to or
Speaker 1: acknowledgment of country.
Speaker 2: What do we know about the circumstances in which that happened?
Speaker 4: So we know this ceremony or this welcome or acknowledgment
Speaker 4: was held during the sentence and hearing for this indigenous teenager.
Speaker 4: Penelope Was in her submission said that she brought both
Speaker 4: the defense and the prosecution into her chambers beforehand and
Speaker 4: alerted them to the fact that she was planning on
Speaker 4: allowing this to happen for this offender.
Speaker 1: Yeah, so depending on where you fall on Australia's present
Speaker 1: cultural divide. I suppose this is either a judge acknowledging
Speaker 1: this kid's ancestry and allowing him to have some agency
Speaker 1: in court, or it's yet another example of wokeness gone
Speaker 1: mad in the court system.
Speaker 5: Yeah, that's right.
Speaker 4: It sparked a conversation and it sort of sent ripples
Speaker 4: throughout the legal fraternity. At the time, there were already
Speaker 4: ten between the judges, particularly of the New South Wales
Speaker 4: District Court, and Sally Dowling in her office. Some of them,
Speaker 4: I think about six or seven had made criticisms of
Speaker 4: her office for running rape cases that didn't have any
Speaker 4: hope of securing a conviction, so they believe didn't have
Speaker 4: enough evidence to ever get it over the line.
Speaker 1: So judges are saying, look, you guys are the dpp
Speaker 1: A running these cases. You're giving false hope to complainants.
Speaker 1: They're never going to get convictions. So the context is
Speaker 1: this pretty hot tension right between judges and the prosecutors.
Speaker 4: Totally, and Penelope was one of those judges. She had
Speaker 4: made comments to that effect in handing down a judgment
Speaker 4: in a sexual assault case. The other thing that she
Speaker 4: had done is she had criticized Sally Dowling for going
Speaker 4: over her head in a separate manner of going over
Speaker 4: her head to the Chief Judge. Penelope was described that
Speaker 4: as trying to exert influence over the judiciary, and she
Speaker 4: reported Sally Dowling to the Legal Services Watchdog in New
Speaker 4: South Wales for what she thought was not good behavior.
Speaker 1: Okay, so when people at bod find out that Penny
Speaker 1: Wars has allowed a convicted criminal to give a welcome
Speaker 1: to or acknowledgement of country in her courtroom, they think, oh,
Speaker 1: this is useful information.
Speaker 4: Well, this is interesting and this is where the timeline
Speaker 4: gets a bit interesting, right. So I found out about
Speaker 4: this complaint to the New South Wales Legal Services Commissioner
Speaker 4: and I put questions to the ODPP about that complaint.
Speaker 4: We planned to run the story the next day. I
Speaker 4: gave them a deadline of later that afternoon with the
Speaker 4: intention of running the story the next day, but we
Speaker 4: ended up holding off on running the story news you can.
Speaker 6: Trust opinions that matter.
Speaker 4: The next morning, however, this news report appears on TWOGB,
Speaker 4: presented by twogb's Ben Fordham, about this welcome to country
Speaker 4: that Penelope Wass had allowed this young indigenous offender to perform.
Speaker 7: Strap yourself in because what we're about to reveal may
Speaker 7: make you fall off your chair. A criminal has conducted
Speaker 7: a welcome to country in the middle of a court
Speaker 7: room before he was sentenced.
Speaker 5: So it's not just now I'm sitting there going, oh,
Speaker 5: what a weird coincidence.
Speaker 4: I was going to run a story about Penelope Wuss
Speaker 4: today and this story happened to come out in the
Speaker 4: media that day.
Speaker 5: We ended up running our story about Penelope Wiss's complaint
Speaker 5: against Sally Dowling the following day, which was a Saturday.
Speaker 1: So the tone of Ben Forden's report is as we
Speaker 1: mentioned before, wokeness gone mad.
Speaker 7: Yeah, he's not supposed to matter. Isn't there a chance
Speaker 7: that observers could view this as special treatment? I would
Speaker 7: have thought so, something available to some and not others.
Speaker 7: No wonder senior legal figures in Sydney are shaking their heads.
Speaker 7: Judge Penelope Woss, in my humble opinion, you've had a shocker.
Speaker 4: He got comments from Alistair Henskins, who was the Opposition
Speaker 4: legal affairs spokesperson at the time, who commented on how
Speaker 4: this wasn't good and that similar tone of wokeness gone
Speaker 4: mad in our court system.
Speaker 8: It seems to me to be quite inappropriate for the
Speaker 8: relationship between the judge who was about to be imposing
Speaker 8: a ceremony to be changed in a manner where the
Speaker 8: prisoner is actually elevated to some special status beyond any
Speaker 8: other ordinary citizen who may or may not be Indigenous.
Speaker 1: So you put in questions to the ODPP on a Thursday.
Speaker 1: On that same day, and we don't know exactly what
Speaker 1: time or whether it was before or after those questions
Speaker 1: arrived from you. There was a meeting at the ODPP
Speaker 1: where the media manager and Sally Dowling were both present.
Speaker 1: What do we know about what happened there?
Speaker 4: The media manager left believing that she was authorized to
Speaker 4: leak the story to GP, believing that she had that permission.
Speaker 1: So she's sitting in the meeting where the media manager says, Hey,
Speaker 1: I've got a great idea. What about if we give
Speaker 1: Ben Fordham this great story which is going to be
Speaker 1: embarrassing to Penny Walls, And Sally Dowling says she's not
Speaker 1: really paying attention.
Speaker 5: The media manager has never said that the story was
Speaker 5: leaked to be retaliatory to pennyss the media manager, has
Speaker 5: said that it was newsworthy, it was in the public interest.
Speaker 5: She initially suggested giving it to the Daily Telegraph. There
Speaker 5: was another external media manager who was in the room
Speaker 5: who said let's give it to twogb instead.
Speaker 1: Here's what media manager Sally Klaurin told the Parliamentary Inquiry
Speaker 1: about that meeting in December and what were you.
Speaker 3: Hoping to achieve in terms of media strategy by giving
Speaker 3: an exclusive on this to either the Daily Telegraph or
Speaker 3: the two GB.
Speaker 2: That the public would be informed.
Speaker 3: So the public and the public would be informed about
Speaker 3: about well, exactly what did you hope to inform the
Speaker 3: public about by providing an exclusive to two GB about
Speaker 3: the unusual activity of the acknowledgment of country being given.
Speaker 3: So the intention was to have it called out as
Speaker 3: unusual Potentially.
Speaker 4: The Parliamentary Inquiry ended up finding that it wasn't in
Speaker 4: the public interest, it wasn't newsworthy, and it was likely
Speaker 4: leaked to retaliate against Penelope Loss. So the committee it
Speaker 4: wasn't able to obtain definitive evidence that that was what occurred,
Speaker 4: but ultimately it found that on balance it was most
Speaker 4: likely that Sally Dowling was involved in the authorization of
Speaker 4: this leak and that it was done to retaliate against
Speaker 4: Penelope Loss. But that is not what Sally Dowling says.
Speaker 4: Sally Dowling says that she was texting, she was on
Speaker 4: her phone, she was reading emails, She was distracted during
Speaker 4: that meeting, and she did not give her express endorsement
Speaker 4: or authorization for this story.
Speaker 2: To be leaked. Yeah, she's reacted very strongly to any
Speaker 2: suggestion that she would have ever agreed to this course
Speaker 2: of action. She said that she regrets not paying more
Speaker 2: attention in the meeting. Presumably she would have stopped this
Speaker 2: happening if she had been paying attention. That's I guess
Speaker 2: the inference we can from that.
Speaker 6: I was doing other work at the end of the
Speaker 6: meeting there. I mean, you know, this is not a
Speaker 6: regular meeting that I attended, and I was doing other
Speaker 6: things that I was I didn't understand that this was
Speaker 6: what was being proposed in this discussion. It was happening,
Speaker 6: and I was aware that it was happening. I was
Speaker 6: not an active participant.
Speaker 7: And when you said to us that you were busy attending.
Speaker 1: So the Parliamentary Committee brings down its report and it
Speaker 1: is not convinced that Sally Delling was telling it the
Speaker 1: truth right correct.
Speaker 4: It suggested that she gave false evidence and that she
Speaker 4: quote seriously obstructed them from being able to do their
Speaker 4: important parliamentary work.
Speaker 5: She has completely rejected that I.
Speaker 6: Did not authorize the proactive pitching of that story, and
Speaker 6: I wouldn't have and if I had understood that that
Speaker 6: was what was being proposed, I would have interrupted that process.
Speaker 6: And I think that that is an answer to your question.
Speaker 5: There was no suggestion from anybody who gave evidence in
Speaker 5: the inquiry that the information was leaked in order to
Speaker 5: retaliate against Penelope. Was was a judge who had been critical of.
Speaker 2: Her office coming up?
Speaker 1: How do we feel about a culture of legal leaks?
Speaker 1: So the majority report of this multi party committee was
Speaker 1: critical of Sally Dowling, but there is a dissenting report
Speaker 1: as well from other MPs who are quite staunch in
Speaker 1: the disagreement.
Speaker 2: What did they say?
Speaker 4: We had a Green's MP, two Labor MPs who were
Speaker 4: incredibly critical of this report. They came through and said
Speaker 4: that this was basically a witch hunt, that they had
Speaker 4: never seen a committee be set up in this way.
Speaker 5: In order to attack one single.
Speaker 4: Person, and also to say that the conclusions that were
Speaker 4: reached by the committee, the conclusions that this was leaked
Speaker 4: under the authorization of Sally Dowling, that she endorsed it,
Speaker 4: and also that it was done in order to retaliate
Speaker 4: against Penelope was We're completely unfounded based off of.
Speaker 5: The evidence it was provided to the committee.
Speaker 1: The support that Sally Dowling has received since this report
Speaker 1: came down has been quite remarkable. The Attorney General, Michael
Speaker 1: Daily says he backs to her one hundred percent. He's
Speaker 1: going to get a senior counsel to review the findings
Speaker 1: of the committee. Many many other the most senior figures
Speaker 1: across the law in Australia have.
Speaker 2: Backed her in.
Speaker 1: One of the recommendations of the committee was that there
Speaker 1: be a kind of parliamentary oversight body of the DPP,
Speaker 1: something that has been suggested before and has always been
Speaker 1: rejected by lawyers as really a breach of the separation
Speaker 1: of powers that Parliament and the judiciary and the legal
Speaker 1: system need to be separate. You can just see politicians
Speaker 1: would absolutely love to get control of prosecutions in this state, right.
Speaker 4: Of course, and this is a suggestion that's been floated
Speaker 4: for a little while now. I've been reporting on this
Speaker 4: sort of such for a few years and it's come
Speaker 4: up quite a few times. The suggestion is often that well,
Speaker 4: ikak has an i CAAQ inspector, right, there's somebody who
Speaker 4: oversees the Independent Commission against Corruption in New South Wales,
Speaker 4: there's one in the Northern Territory, and we should have
Speaker 4: a similar body that's overseeing the ODPP.
Speaker 2: The criticism of.
Speaker 4: That suggestion, I guess, is that, well, hold on, the
Speaker 4: ODPP needs to be independent. You can't have a parliamentary
Speaker 4: committee overseeing the ODPP because then how does that work
Speaker 4: with the separation of powers in the state.
Speaker 1: It's not surprising that two very senior figures in the
Speaker 1: same profession would have beef with one another about this,
Speaker 1: that and the other. But it's remarkable when these conflicts
Speaker 1: spill into the public domain, isn't it?
Speaker 5: Totally?
Speaker 4: And look, I've got no skin in this game. I've
Speaker 4: just been reporting on it for a couple of years.
Speaker 4: But what's so interesting about this is that there are
Speaker 4: two versions of events of what happened here, and they
Speaker 4: could not be more.
Speaker 2: Different on the surface.
Speaker 1: I think you know, people might expect that judges and
Speaker 1: lawyers are all very proper and that they don't talk
Speaker 1: to journalists and that everything is above board and it's
Speaker 1: only what they say in court that matters.
Speaker 2: We know that is not the truth.
Speaker 1: In fact, these are human beings that are talking to
Speaker 1: journalists all the time. One course of action would have
Speaker 1: been to say, well, yeah, our office did leave this information.
Speaker 2: We thought it was relevant. You know, there you go.
Speaker 1: Sally Dowling, of course, was giving evidence on oath and
Speaker 1: there's no suggestion that she's not telling the truth.
Speaker 2: But it's intriguing to.
Speaker 1: Me that this is kind of regarded as a red
Speaker 1: hot accusation because unfathomable that senior lawyers would be talking
Speaker 1: to the media.
Speaker 4: As I mentioned, it's uncontroversial that the information came from
Speaker 4: the ODPP, and we're journalists, right, that's leaks to how
Speaker 4: we do our job. And I guess the newsworthiness to
Speaker 4: this story has always been rooted in the question of well,
Speaker 4: was this leaked in order to retaliate against a judge
Speaker 4: who had been critical of the Office of the ODPP.
Speaker 4: Was there an ulterior motive going on there? Now that's
Speaker 4: been staunchly denied by Sally Dowling and members of the ODPP.
Speaker 4: Despite the Parliamentary Committee saying that that was the case.
Speaker 4: As you said, Michael Daily, the Attorney General has said
Speaker 4: that's absolute blogoney. But I guess that's been the question
Speaker 4: to be probed. Are we satisfied with this suggestion that
Speaker 4: prosecutors would leak against judges in order to damage their reputation.
Speaker 2: I have a feeling this is going to yield a
Speaker 2: lot more stories. Alien.
Speaker 1: It won't be the last time we talk about it
Speaker 1: on the front, so I'll look forward to that. Thank
Speaker 1: you very much, thank you for having me. Ellie Dudley
Speaker 1: is The Australian's National Chief of Staff. You can check
Speaker 1: out Ellie's work and all the scoops anytime at the
Speaker 1: Australian dot com dot au