A collective show of support for NSW DPP Sally Dowling has raised questions about whether senior prosecutors used the authority of public office for a personal and political purpose.
‘They’re as thick as thieves.’
That lovely 19th-century London expression has moved through time to simply mean people who are exceedingly close – those who would pretty much do anything for each other.
But how close is too close, especially when it comes to those entrusted to prosecute the thieves and all the others accused of anything on the criminal calendar?
Independent ACT MLA Thomas Emerson pursued this point with the ACT’s Director of Public Prosecutions, Victoria Engel SC, during an Estimates Committee hearing on 4 August. Engel’s answers have been slammed by the prominent NSW parliamentarian Stephen Lawrence, who said Engel had embroiled her office in the irrelevant affairs of another jurisdiction, using that authority to try to influence parliamentary matters for no bigger purpose than supporting a professional mate.
Emerson asked Engel why she had committed her office to a statement that endorsed NSW DPP Sally Dowling SC just before a NSW parliamentary committee found, by 4–3 vote, that Dowling had lied in her evidence before it.
The statement was signed by all state and territory DPPs – who are now all being pursued forensically by Lawrence to reveal all the collaborations behind the statement’s preparation.
Emerson asked Engel: “What judgment was made by you as to whether this is part of your role as the ACT’s DPP, to use the authority of your office in that way?”
Engel described the statement as “a show of support” for Dowling, one that had been made privately to NSW Attorney-General Michael Daley, but which had been leaked.
“…as DPPs, we have an acute understanding of both the privilege but the heavy responsibility that these roles occupy,” Engel said. “The roles are subject to significant public scrutiny, as they should be. But being in that particular position and understanding the pressure and the privilege of that position, I considered it appropriate to show a sign of support to Ms Dowling in the way that we did.”
Emerson asked if Engel endorsed Dowling’s conduct as found by the committee majority.
Noting there was to be a review by the NSW Crown Solicitor’s Office, Engel offered no further comment on the report itself, but said, “Our letter was limited to showing support for a colleague, understanding full well the type of role that she occupies, and the pressures that come with that role.”
Emerson, suggesting that the DPPs’ letter was basically a character reference for Dowling, asked if Engel supported the removal of character references from sentencing processes, which is happening in the ACT in relation to particular criminal matters.
Declaring it a “complex” issue, Engel continued: “I do think that as a society we have moved beyond understandings of either good or bad character. I think it’s a very archaic way of thinking of human nature. And it can be a flawed way of thinking of human nature because everyone is compartmentalised of good and bad qualities … In relation to the removal of good character insofar as child sexual-assault offences I understand the very strong arguments for that.”
Emerson wheeled the dialogue back to Dowling, suggesting to Engel that she “kind of” knew what the parliamentary inquiry was about to find when all the DPPs clubbed together to give Dowling an effective character reference (one that presumably was neither “flawed” nor “archaic”).
“Do you regret having done so without first looking at the findings?” he asked.
Engel said she had had access to inquiry evidence, watching the various times Ms Dowling had appeared but: “We were speaking to our impression from our professional dealings with Dowling, not commenting on the evidence or otherwise or any findings the committee would make.”
And, yes, she stood by that position.
A very strong Dowling supporter is the man widely seen as the prince of prosecutors, Nick Cowdrey QC, who held the top NSW job for 16 years.
He told the ABC that the inquiry was “outrageous” and had made findings absent “strong and compelling evidence” which would hold up in court.
However, the pivotal committee member, Lawrence, a criminal barrister with extensive courtroom and policy experience, broke from his two Labor committee colleagues (noting one substituted out of the committee on the morning of the crucial decision and was replaced by a colleague who had heard none of the evidence, but proceeded to issue a dissenting statement notwithstanding) and his Attorney-General Daley. His vote made the 4–3 decision possible.
In his report on the committee’s parliamentary website, he argued that the appropriate civil legal test had been satisfied to justify the majority finding that Dowling had lied to the committee.
Lawrence, a former senior prosecutor in the ACT and former senior advisor to former ACT Attorney-General Simon Corbell, speaks with considerable authority on why the entire flock of DPPs publicly declared their support for Dowling in the days before the controversial findings.
“One can see the inappropriateness of the statement without forming an ultimate view about the findings of the committee or the conduct of Ms Dowling,” Lawrence told P&I. “I suspect it will age extremely badly.
“The statement seems to be a fundamentally personal gesture of partiality and not the kind of statement that should be issued by an objective public justice official. It was also a statement they knew, from its timing, would inevitably be interpreted as showing not just personal partiality towards Ms Dowling, but as a comment on the issues before the committee and that’s exactly how it played.
“The statement raises a fundamental issue about personal and public uses of power. It was said to be justified on the basis that as interstate colleagues they ‘understand full well the type of role that she occupies’ and what a ‘privilege’ it is. Well, so what? That can only be understood as either a veiled commentary on the matters before the inquiry, or as an elitist and self-interested perspective, essentially saying that people in tough, important jobs should be personally supported no matter what. Either way the statement involved embroiling one’s own public office in the irrelevant affairs of another jurisdiction and seeking to influence political and parliamentary matters. This was all for a fundamentally personal purpose, that of ‘showing support’, something not required of them by their legislation or any part of the discharge of their important public functions.”
Lawrence has issued Freedom of Information requests on all the DPPs who signed the statement, seeking:
“All documents related to the recent public statement issued by the Director of Public Prosecutions and other Directors in support of Ms Sally Dowling the NSW DPP, including, but not limited to:
- Emails, texts or other ‘app’ messages related to the organisation and preparation of the statement
- Drafts of the statement should they exist
- Emails, texts or other ‘app’ messages between the signatories relating to the statement including prior to and after its issuance.
- All communications between the Victorian DPP [Brendan Kissane KC] and Ms Sally Dowling relating to the statement including prior to and after its issuance”.
As Lawrence concludes “Some very senior lawyers … should have known better.”
Andrew Fraser began his journalistic career in 1979 and has been practising criminal law since 2008.