Chief prosecutor Sally Dowling SC has been hit with a second formal complaint after a criminal barrister reported her to the NSW legal watchdog, arguing that her conduct in a sexual assault prosecution may have prejudiced his client.
Alan Conwell filed the grievance with the Office of the NSW Legal Services Commissioner about two weeks ago, raising concerns about Ms Dowling making a secret complaint to NSW Chief Judge Sarah Huggett in the middle of a trial in which he was acting.
Ms Dowling made the complaint about judge Penelope Wass, alleging the latter was jeopardising the right to a fair trial by directing witnesses to present their phones as evidence, and threatened to “take the matter further” if the directions continued.
Ms Dowling’s complaint was made “only days” before Judge Wass was to deliver judgment in two sexual assault matters – R v SF and R v Stenner-Wall.
The complaint was not disclosed to Mr Conwell, who acted for the defendant in R v SF.
His client was ultimately found not guilty on all counts.
The Australian understand that Mr Conwell’s complaint is highly critical of Ms Dowling. The Australian this week revealed Judge Wass had also made a formal complaint against Ms Dowling to the OLSC, and has since labelled Ms Dowling’s correspondence with the chief judge “inappropriate and irrelevant”.
Judge Wass told the Taree District Court on Tuesday her complaint to the OLSC concerned Ms Dowling’s ex-parte email to Chief Judge Huggett, in addition to comments made by a spokesperson for the Office of the Director of Public Prosecutions to this masthead on June 7.
“In short, the director’s complaint calls into question my ability to act within the bounds of my judicial power and to conduct a fair trial,” she said. “The conduct complained of was not the subject of appeal in either proceeding.”
She continued: “Following the events canvassed in the SF and Stenner-Wall judgments, I made a complaint to the OLSC against Ms Dowling. The complaint procedure is ongoing, and the contents of my complaint are confidential.
“I consider it sufficient to disclose that the substance of my complaint principally concerns two issues: Ms Dowling’s conduct as set out in the two judgments mentioned earlier, and comments made by a spokesperson for the director, which were reported in The Australian on June 7, 2024.”
The director’s spokesperson told The Australian on June 7 that Ms Dowling had not communicated with Judge Wass during proceedings, and conversations between Ms Dowling and the chief judge were “confidential”.
“It is entirely appropriate for the director to discuss with the chief judge, as the head of jurisdiction, matters of mutual concern as they arise,” the spokesperson said at the time.
Judge Wass on Tuesday told parties at Taree it was “appropriate that I disclose the existence of the two complaints to you”.
“The reason being that if I was to make an order adverse to any party, and that party later found out that I was at the time the subject of a complaint from, and had indeed filed my own complaint against, Ms Dowling, that party might have a reasonable basis to wonder whether I was inappropriately influenced in my decision-making,” she said.
Judge Wass said she considered Ms Dowling’s “warning” to her, via the chief judge, to be “inappropriate and irrelevant to my decision-making process”.
“It has not had any bearing on the decisions I made after receiving the complaint,” she said. “Likewise, I do not believe it has affected my ability to deal impartially with matters. That will remain the case going forward.”
NSW Attorney-General Michael Daley told The Australian he was “unable to comment on complaints, or reported complaints, made against legal practitioners”. Ms Dowling declined to comment.