Readers are unlikely to have missed the pitched battle between NSW District Court Judge Penelope Wass and the state’s top prosecutor, Sally Dowling.

The matter reached a head late last year after Wass, in a submission to a Legislative Council Committee, made sweeping accusations against Dowling, ultimately calling for her removal as NSW DPP.

The Committee is investigating identity protections or proceedings involving children.

This prompted Dowling to make a recusal application to the Supreme Court for Wass’s removal from matters in which the DPP is a party – claiming the judge is seen to exhibit apprehended bias.

Wass contests the application, asserting parliamentary privilege over her earlier parliamentary inquiry submission.

The dispute is currently at a standstill, as parties anxiously await the decision of the Court of Appeal, which is set to hear the question of parliamentary privilege next week on February 9.

Dowling has been the subject of tortured attacks by The Australian newspaper, as part of one of its tireless and meaningless campaigns. Her husband Richard Lancaster was recently appointed senior counsel assisting the Bell Royal Commission into antisemitism and social cohesion.

Justinian will be keeping a close eye on the various tentacles of the Wass v Dowling dispute. In the interim, it is opportune to review what led to this mess in the first place.

In 2024, the ODPP found itself at odds with District Court judges over what they viewed as the over-prosecution of sexual assault cases.

That year the NSW Judicial Commission made adverse findings on the grounds of procedural fairness against Judges Robert Newlinds and Peter Whitford.

Dowling had referred both judges to the Commission following their criticism of the ODPP in court and in their reasons for judgment.

Newlinds was found to have bullied prosecution counsel and vilified the DPP. In a judgment, the subject of the complaint, he said he was “left with a deep level of concern that there is some sort of unwritten policy or expectation” that the ODPP would prosecute any sexual assault matter – taking “the lazy and perhaps politically expedient course” of leaving it to the jury to decide.

The Judicial Commission found that Whitford had made “impudent [and] rash” comments in a sexual assault judgment, accusing the ODPP of “opaque, even secret, policies” rather than published guidelines when considering which cases to prosecute.

Both judgments were removed online and the two judges grovelled.

Wass, although herself not reported to the Commission, has been similarly critical of the ODPP’s prosecution of sexual offence cases, particularly in R v DS [2022] NSWDC.

A game of reporting ping pong then began in May 2024, where Dowling complained to the CJ of the District Court about Wass’s directions to witnesses in a number of sexual assault cases. Wass, in turn, referred this complaint to the Bar Association, which said it could not investigate.

The barney was ratcheted up in October 2024 following the sentencing of a young Aboriginal defendant from country NSW.

During the procedure, the teen, who had pleaded guilty to a number of serious offences, was asked by Wass to perform what she called a Welcome to Country ceremony before the Taree District Court.

Wass claimed that she wished to give the defendant an “increased sense of identity and self-esteem” in the hope he would not re-offend.

The invitation stands at odds with traditional court practice. Wass subsequently handed down the maximum penalty.

The proceedings took place via video link, and the defendant was able only to deliver an Acknowledgement of Country.

Criticisms of Wass’ sentencing aside, these events were subsequently leaked by the ODPP media unit to radio station 2GB, and republished by the usual suspects – the Daily Mail, Sky News and right-wing Liberal MP Alister Henskens, the shadow Special Minister of State.

Dowling said her fingerprints are not on the media disclosure, and had only been made aware of the matter subsequently.

Wass, who was subject to much online vitriol after the radio segment, does not believe this claim.

On October 25, 2024, the same day that 2GB went to town on what happened at the Taree court, she referred the matter to the Chief Judge of the Dizzo, the Attorney General, and later the NSW Police.

A criminal investigation was completed without a finding of wrongdoing, although it was limited by the Police’s inability to obtain a warrant.

The ODPP subsequently commenced an external fact-finding investigation led by Norton Rose Fulbright – to determine if there was any misconduct by ODPP employees.

Following this investigation, a junior PR muffin was lettuced with a formal caution, counselling and reeducation.

Wass remained dissatisfied, claiming the investigation was neither independent nor external.

She has detailed her numerous attempts to take the inquiry further, including sending Norton Rose Fulbright lists of questions and submissions to the Chief Judge, who at one point attempted to organise a meeting between the two parties (Dowling politely declined).

Following these unsuccessful manoeuvres, Wass’s most recent move, on November 28, 2025, was a 68-page submission to the parliamentary committee dealing with Identity Protections for Proceedings Involving Children.

Although this appears an unlikely forum for the ventilation of dirty laundry, Wass argues it is a relevant case study in the inadequacies of identity protection for the teen defendant in question.

The submission ultimately calls for consideration of the removal of Dowling as the State’s top prosecutor – a move which has changed the focus of the committee’s inquiry.

Dowling complained that she was not afforded an opportunity to read Wass’s submission ahead of time. In turn, on December 17, 2025, she filed her own 35-page submission in response to Wass’s allegations, and appeared before the committee claiming she had been denied procedural fairness.

Alongside the upcoming Court of Appeal hearing on Dowling’s recusal application and the question of parliamentary privilege, there is a further question – whether the recusal application was an attempt to intimidate an inquiry witness.

Robert Borsak of the Shooters & Rooters Party, chair of the committee, claimed this would place Dowling in contempt of parliament. The vexing issue is currently being investigated by parliament’s privileges committee.

Regardless of the underlying merits of these numerous complaints, it is unfortunate that an inquiry into children’s identity protections appears to have been entirely eclipsed.

Wass is currently presiding over a number of highly serious criminal cases, including a four-year-long historical sexual abuse matter, involving several elderly cancer patients and has already sat for 14 days between hospital visits.

Should the recusal application be successful, the matter will be subject of doubt and delay.