New South Wales Director of Public Prosecutions (DPP) Sally Dowling SC has revealed she discussed a list of potential barristers to lead an independent review into controversial findings against her office with Attorney General Michael Daley before Noel Hutley SC was appointed to the role. The disclosure came during budget estimates on Monday, where Dowling faced questioning about the selection process for the review.
Background of the controversy
Last month, a state parliamentary committee voted 4-3 to find that Dowling had given false evidence about the pitching of a story to radio station 2GB concerning an Indigenous child performing an acknowledgement of country at a sentencing hearing. Dowling admitted her office had pitched the story but denied authorising it. Both Daley and Dowling rejected the committee's findings.
The independent review, conducted by Hutley and assisted by two other barristers, subsequently found there was “no positive basis” to conclude Dowling had given false evidence. The review's findings have been cited by Daley as providing “an objective and expert analysis of [the report’s] shortcomings”.
Details of the discussion
During the estimates hearing, Dowling said Daley had called her to inform her he was appointing a senior counsel to review the evidence before the inquiry and its majority report. She stated that Daley “raised quite a number of [senior counsel’s] names that he was considering, including Mr Hutley’s name”. Dowling noted that some of the individuals mentioned had potential conflicts, as they had previously acted for the Office of the Director of Public Prosecutions (ODPP) or for her personally.
Dowling clarified that Daley did not ask for her advice, but rather mentioned names to which she responded. She said the list comprised eight to twelve people, and she identified two individuals she considered “would not be appropriate”. However, she did not flag Hutley as inappropriate, as she did not believe there was a conflict of interest. Under further questioning, Dowling said she had indicated to Daley that she knew Hutley but provided no additional detail about their relationship.
Professional and social acquaintance
Dowling told the committee she first met Hutley when she came to the bar in 1997, and that after 30 years in Sydney she knew “most of the senior members of the inner bar”. Asked whether she and Hutley were friends, she responded: “I know him professionally and socially and have utter respect for his professionalism, and if Mr Hutley considered that he had some kind of conflict that meant that he shouldn’t accept that from the attorney general, I have total confidence that he would have informed the attorney general of that.”
Dowling also addressed her signing of a statement supporting Hutley’s candidacy for the NSW bar council in 2015, saying she was one of 26 barristers who signed the letter “ten years ago” and that this did not constitute a conflict. She confirmed that none of the names discussed with Daley were interstate lawyers, and when asked if it would have been more appropriate for an interstate barrister to conduct the review, she said: “It’s a matter for the attorney general whom he seeks advice from.”
Reaction from the Attorney General
Earlier on Monday, Daley told estimates he rejected the suggestion that Dowling and Hutley were friends. He expressed “full and absolute confidence” in Dowling and maintained that Hutley’s review had provided an objective and expert analysis of the report’s shortcomings. Hutley and Daley were contacted for comment but had not responded at the time of reporting.
