Documents obtained under freedom of information raise questions about how senior NSW prosecutors came to publicly support DPP Sally Dowling, after being given just 40 minutes to express contrary views.
Senior NSW barristers, including a number of silks, were arguably railroaded into giving public support to NSW Director of Public Prosecutions Sally Dowling, SC, at the time a parliamentary committee found she had lied to it.
Documents obtained under NSW’s Government Information (Public Access) Act by Labor MLC Stephen Lawrence show that the widely reported show of high-level support for Dowling supposedly came together on only 40 minutes’ notice – after hours on a Tuesday evening.
The statement said that “The Crown Prosecutors of NSW express their support” for Dowling and “The Crown Prosecutors are significantly concerned about the unfounded and biased findings” of committee members.
The only reading of that statement is that all Crown prosecutors were backing Dowling – something Lawrence says is simply untrue.
The information released to Lawrence (only a fraction of what was sought) included an email from Brett Hatfield, SC, at 5.50pm on 7 July, to various leading barristers, seeking their support for the statement which was proposed to be issued “around 6.30pm”.
Forty minutes. Imagine the outcry from the silks if jurors were given only that long to decide trials.
Jurors, of course, receive a multitude of directions from trial judges which take time to digest – but running through all those directions and judges’ summings-up is (almost invariably) a repeated balance between the prosecution and defence cases.
Contrast that with the Hatfield email.
While it asked recipients to “express your support or any contrary view”, it came with highly selective takeouts, being three quotes from only the dissenting committee members (those in favour of Dowling).
Lawrence was scathing of the “extraordinary” Hatfield email.
“It is hard to see how the supposed statement in support of Ms Dowling can possibly have been true,” he said. “Silence does not equal agreement.
“The state’s Crown prosecutors were not ‘united in support of Ms Dowling’ that day as is claimed, unless they all expressed that to Mr Hatfield. The truth was that a statement saying they were was circulated after hours with 40 minutes to opt out.
“The Crowns were verballed and the media was tricked into running a fake story.
“The people of NSW are entitled to have confidence in the state’s premier prosecutors’ agency.
“Instead, we get politicised and unethical behaviour in support of the boss in this statement.
“I know for a fact there are Crowns deeply uncomfortable with what occurred.”
The NSW Crowns’ statement came on top of a statement from all state and territory DPPs supporting Dowling. As previously reported in P&I, that support was a highly questionable use of the top prosecutorial office of each jurisdiction in the country. Both Lawrence and ACT Independent MLA Thomas Emerson pursued the genesis of that statement, which Lawrence branded “a fundamentally personal gesture of partiality and not the kind of statement that should be issued by an objective public-justice official”.
Lawrence’s campaign under freedom of information sought virtually all communications regarding the preparation of the joint directors’ statement.
The response, while yielding the Hatfield email, was otherwise underwhelming.
The schedule of documents provided under NSW’s GIPA Act began with the released Hatfield email. Then came eight other listings, with only two released (one being a mere calendar invite and the other relating to a particular email chain with Ellie Dudley, a journalist at The Australian).
The other six comprised another email chain with Dudley (withheld on public-interest grounds), an email from Dowling (invalid as it contained “excluded information” as defined by the legislation), two email chains (of four emails each) involving Dowling (ruled to be legally privileged), and two more individual emails from Dowling (“excluded information”).
The stingy notice of decision came with enough bureaucratic bumph to delight Sir Humphrey Appleby.
But the response from the Commonwealth DPP was priceless.
The processing of Lawrence’s request, which he was told was being prioritised, would have to take a further 30 days in order to see if a state or territory “may wish to contend that the requested documents are exempt because their release may cause damage to relations between the Commonwealth and the states …”
No, really.
“The final decision … rests with the CDPP” – that’s one of the very people whose communications are sought.
Lawrence wrote back: “I must say that would be a self-serving and flawed basis on which to refuse access …
“The relationship between the DPPs will be damaged by public exposure of how they collectively decided to engage in some secret and fundamentally personal and partial lobbying on behalf of one of their number?”
Much of the Dowling imbroglio has focused on the war between her, as the state’s top prosecutor, and District Court Judge Penelope Wass and whether Dowling knew of and/or authorised a leak to the media supposedly discrediting the judge. Some of the released NSW documents go to that and The Australian ran an exclusive on 9 September, adding weight to the notion that Dowling did know and/or authorise.
It was on that point that Lawrence’s committee found, by only a four-three majority (Lawrence at odds with fellow Labor committee members and his attorney-general Michael Daley), that Dowling had lied to the committee about her knowledge of the leak.
Andrew Fraser began his journalistic career in 1979 and has been practising criminal law since 2008.