Citation: R v Stenner-Wall [2024] NSWDC 250
Court: District Court of New South Wales
Date: 28 May 2024
Judge: Wass SC DCJ
Background
This judgment arose in the context of a criminal proceeding in which the accused was before the court for sentencing. While the sentencing was being prepared, a separate but related procedural matter came to light that required public disclosure.
On 22 May 2024, the Director of Public Prosecutions (NSW), Ms Sally Dowling SC, sent an email directly to the Chief Judge of the District Court, Justice Sarah Huggett. The email was sent without the knowledge or consent of the other party to the proceeding, or the Crown prosecutor briefed in the trial. This made the communication an ex parte contact, meaning one side communicated with the court outside the presence or awareness of the other side.
The email concerned three interlocutory rulings (that is, procedural decisions made during the course of proceedings, not final judgments) that Wass SC DCJ had made in this case and two other matters. The DPP expressed opinions criticising those rulings and foreshadowed the possibility of seeking judicial review if similar directions were made in future cases.
Legal Issues
- Whether the ex parte communication from the DPP to the Chief Judge required disclosure to the parties in the affected proceedings.
- Whether the correspondence constituted an improper communication by one party to ongoing litigation, given its timing and content.
- Whether the DPP's foreshadowed warning about potential judicial review raised concerns about the administration of justice.
Decision
Wass SC DCJ concluded that the correspondence was not merely an internal complaint under an administrative protocol. Although a complaint to the Chief Judge about a judicial officer is a recognised and appropriate mechanism, this communication was also an ex parte contact by a party to two ongoing proceedings, made while the judge was actively deliberating or preparing decisions in those very matters.
The judge determined that the content and timing of the communication required immediate disclosure to the parties. The correspondence arrived only days before judgment was due in two of the three cases referenced, and it included an express warning that the DPP would consider seeking judicial review if similar directions were made in future. Wass SC DCJ regarded that warning as extremely serious, particularly given it was delivered while the proceedings were part-heard.
The judge noted that none of the three interlocutory decisions referred to in the email had been appealed. In two of the three cases, the parties had either agreed to the course adopted or had not objected at the time. The DPP's email did not identify any specific rights to a fair trial that had been infringed, and did not refer the Chief Judge to the relevant provisions of the Evidence Act 1995 (NSW) or applicable case law on the call for documents.
Wass SC DCJ stated that the correspondence had no effect on the substantive determination of any matter, but that disclosure was necessary in the interests of procedural fairness. The judge expressed regret for the resulting delay, describing it as avoidable, and noted that had the communication arrived one week later, neither disclosure nor delay would have been required.
Orders Made
No orders were made in this decision.
Key Takeaways
- An ex parte communication to the Chief Judge by a party to ongoing litigation, made during the course of those proceedings, may require disclosure to all parties, regardless of whether the communication also engages a recognised complaints mechanism.
- The District Court held that the combination of factors, including the timing of the email, its authorship by the prosecuting party, and its inclusion of a warning about future judicial review, elevated the communication beyond a routine administrative complaint.
- Where a communication from a party seeks, even implicitly, to influence a judicial officer's approach to future decisions while proceedings are part-heard, a court may treat that as raising serious concerns about the administration of justice.
- The DPP's failure to identify specific procedural safeguards that had been breached, or to refer to relevant statutory provisions and case law, was noted by the court as a significant omission in the substance of the criticism.
- A warning of contemplated judicial review, delivered by a party during active proceedings and described by the court as "delphic" in form, was characterised as highly inappropriate conduct, particularly from an experienced Senior Counsel.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
Cases:
- Griffin v The Council of the Law Society of NSW [2016] NSWCCA 364
- R v Chambers (District Court (NSW), Wass SC DCJ, 2 November 2021, unreported)
- R v SF (District Court (NSW), Wass SC DCJ, 2 May 2024, unreported)
- R v Taufahema [2007] HCA 11