A landmark historical sexual abuse trial in New South Wales sits frozen in the District Court, caught in a feud between the state's top prosecutor and the judge assigned to hear the case. The four-year trial was put on hold this week after the Office of the Director of Public Prosecutions moved to have Judge Penelope Wass step aside, citing her recent parliamentary submission as creating bias against the prosecution.
Crown prosecutor Brett Hatfield SC, appearing before Judge Wass earlier this week, requested she remove herself from a four-year historical sexual abuse case for apprehended bias following her parliamentary submission. The case is judge-alone, meaning no jury will determine guilt or innocence. Any change of judge means starting the trial from scratch, a costly delay for victims and the justice system alike.
The roots of this standoff run deep. Dowling admitted earlier in November that her media team did leak restricted court material to Sydney radio station 2GB that ultimately formed the basis of a scathing 2024 broadcast about Judge Wass. In her submission to a NSW upper house inquiry, Judge Wass was critical of NSW Director of Public Prosecutions Sally Dowling SC, calling for her potential removal and accusing her office of leaking information to a commercial radio station in order to damage her reputation.
Now prosecutors are attempting to use that very parliamentary submission, which was made under privilege, as grounds for removing Judge Wass from the criminal trial. In a letter to the NSW Legislative Council president, committee chair and Shooters, Fishers and Farmers MP Robert Borsak said he was gravely concerned that material NSW District Court Judge Penelope Wass submitted under parliamentary privilege was being used to have the judge recused from criminal proceedings.
The judge herself has signalled deep frustration with the process. Judge Wass described the situation as "uncharted territory" and accused prosecutors of behaving in "bad form" by flagging that a recusal application would be filed soon and then not filing it. "The administration of justice only operates if the parties are properly put on notice of what other parties are intending," she added.
The prosecution says it plans to escalate the matter to the NSW Court of Appeal to determine whether the parliamentary material, submitted under privilege, can even be used in the recusal application. He also foreshadowed similar applications being made in Judge Wass's other criminal matters. This suggests the standoff extends far beyond the single trial now in limbo.
The conduct of the prosecution office has attracted scrutiny at the highest levels. There is no good reason in 2026 to allow DPPs to be less accountable than anyone else for their conduct and their decisions. The present "non-accountability" brings our criminal justice system into disrepute.
What strikes observers most sharply is the asymmetry in power. Top barrister and former president of the NSW bar association Arthur Moses SC lauded Judge Wass as "one of our bar's most diligent, thorough and investigative female practitioners" when she was sworn in as a judge of the NSW District Court in 2016. Yet regardless of her professional standing or experience, one recusal application, one escalation to the Court of Appeal, can bring a major trial to a halt.
The trial's delay has real consequences. Victims of historical abuse wait longer for their day in court. The broader integrity of the criminal justice system depends on prosecutors and judges maintaining sufficient institutional trust to function. When those relationships fracture, trials stall, and justice is deferred.
The case now hinges on how courts will treat material submitted under parliamentary privilege when used in a recusal application. The answer may determine not just the fate of this single trial, but the boundaries of accountability for prosecutorial conduct in NSW.