WEBVTT - Her Honour vs Madam Crown

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<v Speaker 1>From The Australian. Here's what's on the front. I'm Claire Harvey.

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<v Speaker 1>It's Friday, July tenth, twenty twenty six. Tony Abbott's mission

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<v Speaker 1>to stop people smuggling boats prompted some bureaucrats to warn

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<v Speaker 1>they were worried the government was breaking the law or

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<v Speaker 1>would provoke conflict with Indonesia. That's one of the revelations

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<v Speaker 1>in Paul Kelly's book The Twilight of Exceptionalism, launched today

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<v Speaker 1>and with exclusive extracts at The Australian dot com AU

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<v Speaker 1>this weekend. Judges versus prosecutors, politicians versus lawyers. There's an

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<v Speaker 1>intriguing power struggle going on in New South Wales that

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<v Speaker 1>raises big questions about the separation of powers and how

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<v Speaker 1>our criminal justice system really works. Our own Elie Dudley

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<v Speaker 1>has been breaking all the scoops.

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<v Speaker 2>She's here in just a moment.

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<v Speaker 1>Ellie Dudley is The Australian's National Chief of Staff and

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<v Speaker 1>she's been following a story that seems as old as

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<v Speaker 1>the colony of New South Wales. Ellie, it's a fight

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<v Speaker 1>at the highest levels of the New South Wales judiciary

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<v Speaker 1>and legal system.

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<v Speaker 3>To breaking news now and an explosive parliamentary report has

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<v Speaker 3>found Chief Prosecutor Sally Dowling.

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<v Speaker 4>Said to have given given false evidence to Parliament and

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<v Speaker 4>should face a formal inquiry into whether she should be sacked.

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<v Speaker 1>This is Sally Dowling, the Director of Public Prosecutions in

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<v Speaker 1>the state, who's got herself tangled up in a disagreement

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<v Speaker 1>i would say, between politicians herself, and there are judges

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<v Speaker 1>and other.

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<v Speaker 2>Senior legal figures involved as well.

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<v Speaker 1>First of all, Sally Dowling is complaining that she's been

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<v Speaker 1>criticized by politicians for some actions taken by her offers

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<v Speaker 1>and the legal fraternity rallied around Sally Dowling in quite

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<v Speaker 1>a remarkable way. What are they saying and why are

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<v Speaker 1>they backing her in so hard?

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<v Speaker 4>Yeah, So in order to answer that question, Claiut track

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<v Speaker 4>it back a little while. So basically, there was an

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<v Speaker 4>accusation that was put against Sally Dowling before a parliamentary committee. Now,

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<v Speaker 4>this parliamentary committee was set up to probe how the

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<v Speaker 4>identities of children are protected in legal proceedings, because, as

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<v Speaker 4>we know, you can't name kids when they're before the courts.

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<v Speaker 4>So this parliamentary committee was set up and as part

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<v Speaker 4>of that, this bombshell submission was lobbed by a new

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<v Speaker 4>South Wales District Court judge called Penelope Wass. Penelope Wass

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<v Speaker 4>had been critical of Sally Dowling and her office in

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<v Speaker 4>the past, but she lodged this sort of sixty odd

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<v Speaker 4>page submission with this inquiry accusing Miss Dowling and her

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<v Speaker 4>office of leaking information to a commercial radio station two

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<v Speaker 4>GB in order to damage her reputation.

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<v Speaker 2>Okay, so let's track it back.

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<v Speaker 1>Penelope was was hearing a matter in which a young

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<v Speaker 1>man of Aboriginal descent was involved. He was accused she

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<v Speaker 1>allowed him in court to give a welcome to or

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<v Speaker 1>acknowledgment of country.

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<v Speaker 2>What do we know about the circumstances in which that happened?

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<v Speaker 4>So we know this ceremony or this welcome or acknowledgment

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<v Speaker 4>was held during the sentence and hearing for this indigenous teenager.

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<v Speaker 4>Penelope Was in her submission said that she brought both

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<v Speaker 4>the defense and the prosecution into her chambers beforehand and

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<v Speaker 4>alerted them to the fact that she was planning on

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<v Speaker 4>allowing this to happen for this offender.

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<v Speaker 1>Yeah, so depending on where you fall on Australia's present

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<v Speaker 1>cultural divide. I suppose this is either a judge acknowledging

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<v Speaker 1>this kid's ancestry and allowing him to have some agency

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<v Speaker 1>in court, or it's yet another example of wokeness gone

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<v Speaker 1>mad in the court system.

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<v Speaker 5>Yeah, that's right.

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<v Speaker 4>It sparked a conversation and it sort of sent ripples

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<v Speaker 4>throughout the legal fraternity. At the time, there were already

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<v Speaker 4>ten between the judges, particularly of the New South Wales

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<v Speaker 4>District Court, and Sally Dowling in her office. Some of them,

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<v Speaker 4>I think about six or seven had made criticisms of

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<v Speaker 4>her office for running rape cases that didn't have any

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<v Speaker 4>hope of securing a conviction, so they believe didn't have

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<v Speaker 4>enough evidence to ever get it over the line.

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<v Speaker 1>So judges are saying, look, you guys are the dpp

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<v Speaker 1>A running these cases. You're giving false hope to complainants.

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<v Speaker 1>They're never going to get convictions. So the context is

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<v Speaker 1>this pretty hot tension right between judges and the prosecutors.

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<v Speaker 4>Totally, and Penelope was one of those judges. She had

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<v Speaker 4>made comments to that effect in handing down a judgment

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<v Speaker 4>in a sexual assault case. The other thing that she

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<v Speaker 4>had done is she had criticized Sally Dowling for going

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<v Speaker 4>over her head in a separate manner of going over

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<v Speaker 4>her head to the Chief Judge. Penelope was described that

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<v Speaker 4>as trying to exert influence over the judiciary, and she

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<v Speaker 4>reported Sally Dowling to the Legal Services Watchdog in New

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<v Speaker 4>South Wales for what she thought was not good behavior.

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<v Speaker 1>Okay, so when people at bod find out that Penny

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<v Speaker 1>Wars has allowed a convicted criminal to give a welcome

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<v Speaker 1>to or acknowledgement of country in her courtroom, they think, oh,

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<v Speaker 1>this is useful information.

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<v Speaker 4>Well, this is interesting and this is where the timeline

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<v Speaker 4>gets a bit interesting, right. So I found out about

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<v Speaker 4>this complaint to the New South Wales Legal Services Commissioner

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<v Speaker 4>and I put questions to the ODPP about that complaint.

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<v Speaker 4>We planned to run the story the next day. I

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<v Speaker 4>gave them a deadline of later that afternoon with the

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<v Speaker 4>intention of running the story the next day, but we

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<v Speaker 4>ended up holding off on running the story news you can.

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<v Speaker 6>Trust opinions that matter.

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<v Speaker 4>The next morning, however, this news report appears on TWOGB,

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<v Speaker 4>presented by twogb's Ben Fordham, about this welcome to country

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<v Speaker 4>that Penelope Wass had allowed this young indigenous offender to perform.

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<v Speaker 7>Strap yourself in because what we're about to reveal may

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<v Speaker 7>make you fall off your chair. A criminal has conducted

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<v Speaker 7>a welcome to country in the middle of a court

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<v Speaker 7>room before he was sentenced.

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<v Speaker 5>So it's not just now I'm sitting there going, oh,

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<v Speaker 5>what a weird coincidence.

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<v Speaker 4>I was going to run a story about Penelope Wuss

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<v Speaker 4>today and this story happened to come out in the

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<v Speaker 4>media that day.

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<v Speaker 5>We ended up running our story about Penelope Wiss's complaint

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<v Speaker 5>against Sally Dowling the following day, which was a Saturday.

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<v Speaker 1>So the tone of Ben Forden's report is as we

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<v Speaker 1>mentioned before, wokeness gone mad.

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<v Speaker 7>Yeah, he's not supposed to matter. Isn't there a chance

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<v Speaker 7>that observers could view this as special treatment? I would

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<v Speaker 7>have thought so, something available to some and not others.

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<v Speaker 7>No wonder senior legal figures in Sydney are shaking their heads.

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<v Speaker 7>Judge Penelope Woss, in my humble opinion, you've had a shocker.

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<v Speaker 4>He got comments from Alistair Henskins, who was the Opposition

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<v Speaker 4>legal affairs spokesperson at the time, who commented on how

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<v Speaker 4>this wasn't good and that similar tone of wokeness gone

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<v Speaker 4>mad in our court system.

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<v Speaker 8>It seems to me to be quite inappropriate for the

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<v Speaker 8>relationship between the judge who was about to be imposing

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<v Speaker 8>a ceremony to be changed in a manner where the

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<v Speaker 8>prisoner is actually elevated to some special status beyond any

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<v Speaker 8>other ordinary citizen who may or may not be Indigenous.

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<v Speaker 1>So you put in questions to the ODPP on a Thursday.

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<v Speaker 1>On that same day, and we don't know exactly what

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<v Speaker 1>time or whether it was before or after those questions

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<v Speaker 1>arrived from you. There was a meeting at the ODPP

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<v Speaker 1>where the media manager and Sally Dowling were both present.

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<v Speaker 1>What do we know about what happened there?

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<v Speaker 4>The media manager left believing that she was authorized to

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<v Speaker 4>leak the story to GP, believing that she had that permission.

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<v Speaker 1>So she's sitting in the meeting where the media manager says, Hey,

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<v Speaker 1>I've got a great idea. What about if we give

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<v Speaker 1>Ben Fordham this great story which is going to be

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<v Speaker 1>embarrassing to Penny Walls, And Sally Dowling says she's not

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<v Speaker 1>really paying attention.

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<v Speaker 5>The media manager has never said that the story was

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<v Speaker 5>leaked to be retaliatory to pennyss the media manager, has

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<v Speaker 5>said that it was newsworthy, it was in the public interest.

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<v Speaker 5>She initially suggested giving it to the Daily Telegraph. There

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<v Speaker 5>was another external media manager who was in the room

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<v Speaker 5>who said let's give it to twogb instead.

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<v Speaker 1>Here's what media manager Sally Klaurin told the Parliamentary Inquiry

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<v Speaker 1>about that meeting in December and what were you.

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<v Speaker 3>Hoping to achieve in terms of media strategy by giving

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<v Speaker 3>an exclusive on this to either the Daily Telegraph or

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<v Speaker 3>the two GB.

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<v Speaker 2>That the public would be informed.

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<v Speaker 3>So the public and the public would be informed about

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<v Speaker 3>about well, exactly what did you hope to inform the

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<v Speaker 3>public about by providing an exclusive to two GB about

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<v Speaker 3>the unusual activity of the acknowledgment of country being given.

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<v Speaker 3>So the intention was to have it called out as

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<v Speaker 3>unusual Potentially.

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<v Speaker 4>The Parliamentary Inquiry ended up finding that it wasn't in

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<v Speaker 4>the public interest, it wasn't newsworthy, and it was likely

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<v Speaker 4>leaked to retaliate against Penelope Loss. So the committee it

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<v Speaker 4>wasn't able to obtain definitive evidence that that was what occurred,

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<v Speaker 4>but ultimately it found that on balance it was most

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<v Speaker 4>likely that Sally Dowling was involved in the authorization of

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<v Speaker 4>this leak and that it was done to retaliate against

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<v Speaker 4>Penelope Loss. But that is not what Sally Dowling says.

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<v Speaker 4>Sally Dowling says that she was texting, she was on

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<v Speaker 4>her phone, she was reading emails, She was distracted during

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<v Speaker 4>that meeting, and she did not give her express endorsement

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<v Speaker 4>or authorization for this story.

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<v Speaker 2>To be leaked. Yeah, she's reacted very strongly to any

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<v Speaker 2>suggestion that she would have ever agreed to this course

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<v Speaker 2>of action. She said that she regrets not paying more

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<v Speaker 2>attention in the meeting. Presumably she would have stopped this

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<v Speaker 2>happening if she had been paying attention. That's I guess

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<v Speaker 2>the inference we can from that.

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<v Speaker 6>I was doing other work at the end of the

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<v Speaker 6>meeting there. I mean, you know, this is not a

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<v Speaker 6>regular meeting that I attended, and I was doing other

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<v Speaker 6>things that I was I didn't understand that this was

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<v Speaker 6>what was being proposed in this discussion. It was happening,

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<v Speaker 6>and I was aware that it was happening. I was

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<v Speaker 6>not an active participant.

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<v Speaker 7>And when you said to us that you were busy attending.

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<v Speaker 1>So the Parliamentary Committee brings down its report and it

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<v Speaker 1>is not convinced that Sally Delling was telling it the

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<v Speaker 1>truth right correct.

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<v Speaker 4>It suggested that she gave false evidence and that she

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<v Speaker 4>quote seriously obstructed them from being able to do their

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<v Speaker 4>important parliamentary work.

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<v Speaker 5>She has completely rejected that I.

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<v Speaker 6>Did not authorize the proactive pitching of that story, and

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<v Speaker 6>I wouldn't have and if I had understood that that

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<v Speaker 6>was what was being proposed, I would have interrupted that process.

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<v Speaker 6>And I think that that is an answer to your question.

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<v Speaker 5>There was no suggestion from anybody who gave evidence in

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<v Speaker 5>the inquiry that the information was leaked in order to

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<v Speaker 5>retaliate against Penelope. Was was a judge who had been critical of.

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<v Speaker 2>Her office coming up?

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<v Speaker 1>How do we feel about a culture of legal leaks?

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<v Speaker 1>So the majority report of this multi party committee was

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<v Speaker 1>critical of Sally Dowling, but there is a dissenting report

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<v Speaker 1>as well from other MPs who are quite staunch in

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<v Speaker 1>the disagreement.

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<v Speaker 2>What did they say?

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<v Speaker 4>We had a Green's MP, two Labor MPs who were

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<v Speaker 4>incredibly critical of this report. They came through and said

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<v Speaker 4>that this was basically a witch hunt, that they had

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<v Speaker 4>never seen a committee be set up in this way.

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<v Speaker 5>In order to attack one single.

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<v Speaker 4>Person, and also to say that the conclusions that were

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<v Speaker 4>reached by the committee, the conclusions that this was leaked

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<v Speaker 4>under the authorization of Sally Dowling, that she endorsed it,

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<v Speaker 4>and also that it was done in order to retaliate

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<v Speaker 4>against Penelope was We're completely unfounded based off of.

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<v Speaker 5>The evidence it was provided to the committee.

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<v Speaker 1>The support that Sally Dowling has received since this report

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<v Speaker 1>came down has been quite remarkable. The Attorney General, Michael

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<v Speaker 1>Daily says he backs to her one hundred percent. He's

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<v Speaker 1>going to get a senior counsel to review the findings

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<v Speaker 1>of the committee. Many many other the most senior figures

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<v Speaker 1>across the law in Australia have.

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<v Speaker 2>Backed her in.

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<v Speaker 1>One of the recommendations of the committee was that there

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<v Speaker 1>be a kind of parliamentary oversight body of the DPP,

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<v Speaker 1>something that has been suggested before and has always been

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<v Speaker 1>rejected by lawyers as really a breach of the separation

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<v Speaker 1>of powers that Parliament and the judiciary and the legal

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<v Speaker 1>system need to be separate. You can just see politicians

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<v Speaker 1>would absolutely love to get control of prosecutions in this state, right.

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<v Speaker 4>Of course, and this is a suggestion that's been floated

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<v Speaker 4>for a little while now. I've been reporting on this

0:12:59.360 --> 0:13:02.079
<v Speaker 4>sort of such for a few years and it's come

0:13:02.120 --> 0:13:05.280
<v Speaker 4>up quite a few times. The suggestion is often that well,

0:13:05.440 --> 0:13:08.280
<v Speaker 4>ikak has an i CAAQ inspector, right, there's somebody who

0:13:08.400 --> 0:13:11.640
<v Speaker 4>oversees the Independent Commission against Corruption in New South Wales,

0:13:11.679 --> 0:13:14.040
<v Speaker 4>there's one in the Northern Territory, and we should have

0:13:14.080 --> 0:13:16.720
<v Speaker 4>a similar body that's overseeing the ODPP.

0:13:17.600 --> 0:13:19.040
<v Speaker 2>The criticism of.

0:13:18.920 --> 0:13:21.920
<v Speaker 4>That suggestion, I guess, is that, well, hold on, the

0:13:21.920 --> 0:13:25.760
<v Speaker 4>ODPP needs to be independent. You can't have a parliamentary

0:13:25.760 --> 0:13:29.760
<v Speaker 4>committee overseeing the ODPP because then how does that work

0:13:29.800 --> 0:13:31.520
<v Speaker 4>with the separation of powers in the state.

0:13:32.120 --> 0:13:35.000
<v Speaker 1>It's not surprising that two very senior figures in the

0:13:35.040 --> 0:13:37.600
<v Speaker 1>same profession would have beef with one another about this,

0:13:37.720 --> 0:13:40.760
<v Speaker 1>that and the other. But it's remarkable when these conflicts

0:13:40.800 --> 0:13:42.319
<v Speaker 1>spill into the public domain, isn't it?

0:13:42.440 --> 0:13:42.880
<v Speaker 5>Totally?

0:13:42.920 --> 0:13:44.600
<v Speaker 4>And look, I've got no skin in this game. I've

0:13:44.640 --> 0:13:47.120
<v Speaker 4>just been reporting on it for a couple of years.

0:13:47.559 --> 0:13:49.760
<v Speaker 4>But what's so interesting about this is that there are

0:13:49.760 --> 0:13:52.679
<v Speaker 4>two versions of events of what happened here, and they

0:13:52.760 --> 0:13:53.680
<v Speaker 4>could not be more.

0:13:53.520 --> 0:13:55.280
<v Speaker 2>Different on the surface.

0:13:55.320 --> 0:13:57.880
<v Speaker 1>I think you know, people might expect that judges and

0:13:57.960 --> 0:14:00.959
<v Speaker 1>lawyers are all very proper and that they don't talk

0:14:01.000 --> 0:14:03.920
<v Speaker 1>to journalists and that everything is above board and it's

0:14:03.960 --> 0:14:05.720
<v Speaker 1>only what they say in court that matters.

0:14:06.000 --> 0:14:07.520
<v Speaker 2>We know that is not the truth.

0:14:07.760 --> 0:14:09.680
<v Speaker 1>In fact, these are human beings that are talking to

0:14:09.760 --> 0:14:14.000
<v Speaker 1>journalists all the time. One course of action would have

0:14:14.240 --> 0:14:17.800
<v Speaker 1>been to say, well, yeah, our office did leave this information.

0:14:17.840 --> 0:14:19.480
<v Speaker 2>We thought it was relevant. You know, there you go.

0:14:21.360 --> 0:14:23.400
<v Speaker 1>Sally Dowling, of course, was giving evidence on oath and

0:14:23.400 --> 0:14:25.440
<v Speaker 1>there's no suggestion that she's not telling the truth.

0:14:26.080 --> 0:14:27.880
<v Speaker 2>But it's intriguing to.

0:14:27.880 --> 0:14:30.200
<v Speaker 1>Me that this is kind of regarded as a red

0:14:30.240 --> 0:14:34.760
<v Speaker 1>hot accusation because unfathomable that senior lawyers would be talking

0:14:34.800 --> 0:14:35.640
<v Speaker 1>to the media.

0:14:35.720 --> 0:14:38.200
<v Speaker 4>As I mentioned, it's uncontroversial that the information came from

0:14:38.240 --> 0:14:42.400
<v Speaker 4>the ODPP, and we're journalists, right, that's leaks to how

0:14:42.400 --> 0:14:46.000
<v Speaker 4>we do our job. And I guess the newsworthiness to

0:14:46.080 --> 0:14:49.800
<v Speaker 4>this story has always been rooted in the question of well,

0:14:50.480 --> 0:14:54.120
<v Speaker 4>was this leaked in order to retaliate against a judge

0:14:54.160 --> 0:14:57.440
<v Speaker 4>who had been critical of the Office of the ODPP.

0:14:57.800 --> 0:15:02.040
<v Speaker 4>Was there an ulterior motive going on there? Now that's

0:15:02.040 --> 0:15:05.800
<v Speaker 4>been staunchly denied by Sally Dowling and members of the ODPP.

0:15:06.560 --> 0:15:09.800
<v Speaker 4>Despite the Parliamentary Committee saying that that was the case.

0:15:09.840 --> 0:15:12.520
<v Speaker 4>As you said, Michael Daily, the Attorney General has said

0:15:12.560 --> 0:15:15.680
<v Speaker 4>that's absolute blogoney. But I guess that's been the question

0:15:15.800 --> 0:15:19.680
<v Speaker 4>to be probed. Are we satisfied with this suggestion that

0:15:19.880 --> 0:15:24.040
<v Speaker 4>prosecutors would leak against judges in order to damage their reputation.

0:15:24.680 --> 0:15:26.160
<v Speaker 2>I have a feeling this is going to yield a

0:15:26.160 --> 0:15:27.120
<v Speaker 2>lot more stories. Alien.

0:15:27.160 --> 0:15:28.600
<v Speaker 1>It won't be the last time we talk about it

0:15:28.600 --> 0:15:30.160
<v Speaker 1>on the front, so I'll look forward to that. Thank

0:15:30.160 --> 0:15:37.200
<v Speaker 1>you very much, thank you for having me. Ellie Dudley

0:15:37.360 --> 0:15:39.920
<v Speaker 1>is The Australian's National Chief of Staff. You can check

0:15:39.960 --> 0:15:42.680
<v Speaker 1>out Ellie's work and all the scoops anytime at the

0:15:42.760 --> 0:15:44.680
<v Speaker 1>Australian dot com dot au