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The NSW attorney-general has rejected findings that the state’s top prosecutor authorised her office to pitch a negative story about a sitting judge to the media, declaring the matter “closed” after receiving legal advice that a controversial report was flawed.
Michael Daley released advice on Wednesday from a trio of barristers, led by former Bar Association president Noel Hutley, SC, who concluded that evidence before a parliamentary committee did not justify the majority’s findings against Director of Public Prosecutions Sally Dowling, SC.
“I express my gratitude to counsel and the Crown Solicitor’s Office for the prompt provision of the advice. This matter should now be regarded as closed,” Daley said.
“The Director of Public Prosecutions should be permitted to devote her undivided attention to the important work of prosecuting those who commit serious crime and keeping our community safe.”
In a controversial report, released last month, a 4-3 majority of NSW MPs made damaging findings that Dowling authorised her office to give information to radio station 2GB in 2024 for a negative story about District Court Judge Penelope Wass, and falsely denied doing so in her evidence in parliament.
The inquiry was blasted by Daley as a “stitch-up” and former DPP Nicholas Cowdery, KC, described the report as “outrageous”. Three MPs dissented in strong terms from the majority’s findings and recommendations.
In advice to the Crown Solicitor’s Office, Hutley and barristers Naomi Oreb and Adam Khadra said there was “no basis to find the [DPP] had the idea of making the pitch, either at all or to 2GB specifically, or that the Director authorised either of those things”.
“There was no basis to find that the people who did so were motivated to provoke criticism of Judge Wass, SC,” the trio said.
During her evidence before the upper house justice and communities committee last year, Dowling admitted her office effectively gave a story about Wass to 2GB in October 2024.
Dowling vehemently denied she authorised the ODPP’s media manager providing the information to 2GB, and said she only became aware that her office was the source of the story more than a year later, in December 2025. The majority did not accept her denial.
Dowling said that she “was, as is my usual practice, also reading emails and texts concerning various prosecutions and other ODPP business” during a crucial meeting.
The legal advice said that “[in] the absence of any clear findings of fact about what did occur at the meeting … it seems to us wrong for the committee to have concluded that the [DPP] ‘authorised’ the proactive pitch of the story”.
“Any such conclusion – and an ‘authorisation’ is undoubtedly a conclusion, not a finding of fact – first requires a factual foundation,” it said.
“The [DPP’s] denial of that proposition, and account of the meeting, was given by way of sworn evidence, was inherently plausible, and was corroborated by other evidence – including that of the person who pitched the story.
“Further, there was no positive basis upon which to reject the [DPP’s] account and proceed to find that she, in fact, gave false evidence. For such a serious finding to be substantiated, something more than mere disbelief of the [DPP’s] evidence was required.”
Daley said that in light of this advice the government “cannot and will not” support the majority’s recommendations that it consider establishing “a formal inquiry with compulsory powers” into the incident and a new parliamentary oversight committee for the office of the DPP.
The legal advice concluded it was also open to Daley to “reject the finding that the story was not in the public interest”, after the majority of the committee found there was no “genuine public interest” in the ODPP pitching it to 2GB.
The 2GB story concerned Wass’ invitation to an Indigenous youth she was sentencing for an aggravated break and enter involving the sexual touching of an elderly woman.
Wass invited him to give what she called a “Welcome to Country”. Rather than a welcome, which was not culturally appropriate, he delivered a short acknowledgement of the “traditional owners and custodians of this land” via video link.
The advice to Daley said there was “no evidence to suggest that inviting an offender to perform a Welcome to or Acknowledgement of Country has ever occurred before or since”.
“In our view, if it is accepted that a unique event in a process of sentencing a member of the Aboriginal and Torres Strait Islander community had occurred, the fact that the event might prompt any manner of criticism of different participants in the legal system cannot be a reason for concluding that reporting on that event is not in the public interest.”
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