By Paul Gregoire and Ugur Nedim
The New South Wales Director of Public Prosecutions (DPP) has successfully appealed a decision of a NSW District Court Judge not to remove herself from three cases.
The appeal came in the wake of remarks in which the judge was critical of the DPP being published by a NSW parliamentary committee. The DPP requested that the judge remove herself from four 2026 cases based on apprehended bias. The judge refused to do so for three of the cases, R versus TH, R versus MB and R versus Sharp. Her Honour did, however, follow a request to remove herself from a fourth case, R versus Baker.
So, the 7 August 2026 proceedings came before the NSW Court of Criminal Appeal for the three cases she refused to do so.
The respondents in the appeal – TH, MB and Sharp – had all been charged by the DPP. TH and MB were charged on indictment, and Sharp was dealt with summarily. MB and Sharp were awaiting sentence when the DPP sought Judge Penelope Wass be removed as their sentencing judge in December 2025, while TH’s matter was yet to commence.
However, Judge Wass removed herself from presiding over the sentencing in the Baker prosecution, which was tried before the NSW Local Court, because she’d had ex parte communications, or unilateral exchanges, with Baker’s lawyer without the knowledge of the prosecution and these exchanges had not been disclosed to the court as per regulation, prior to the request for removal.
More exchanges then took place between the judge and a lawyer during the 2025 trialling of Wayne Pettit. And another matter scrutinised on appeal was an 8 December 2025 LinkedIn post made by the judge, lamenting the death of a former DPP that subtly served to critique the current one. Yet, despite this being the case, Judge Wass still to refused to remove herself from TH, MB and Sharp.
Ex parte communications
The judge’s submission to the NSW Legislative Council committee inquiry outlined a series of long-standing grievances she had against the NSW DPP, which had already been aired to the NSW Bar Association and the NSW Police Force. And whether the judge’s complaints about the DPP were made out or were invalid was irrelevant to the appeal of the denial of the withdrawal requests.
Key to proceedings, according to the three-justice bench of the NSW Court of Criminal Appeal (NSWCCA), was the “double might test”, as confirmed by the High Court in 2023’s HCF versus The Queen, and it comprises of whether a fair-minded observer ‘might’ consider that the judge ‘might’ not bring the impartial administration of justice to proceedings.
The NSWCCA justices further outlined that three matters had to be considered by the court to ascertain whether the DPP’s appeal was made out, and these were “the making of the submission and its contents”, the ex parte communications, or unilateral exchanges between the judge and one side’s lawyer, and the failure to ever disclose the content of ex parte communications.
Ex parte communications are those made between a lawyer acting on behalf of one party in a case and a judge about a substantial matter, while the pair do not have the consent of the representatives of the other party at trial and that they neither disclose details of the exchanges, which is in breach of rule 22.5 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW).
This occurred on repeated occasions between the judge, whom the DPP was appealing her refusal to remove herself from three cases, and the criminal defence lawyer in the NSWCCA 2026 case R versus Baker, and it involved the lawyers communicating about the judge’s submission to the parliamentary committee over October and November 2025.
Apprehended bias
“The principal issue in this court is whether the well-established test for disqualification for apprehended bias is satisfied in light of the totality of material on which the Director relies,” their Honours in the current appeal explained. And that bench was made up of NSWCCA Justices Mark Leeming, Kristiana Stern and John Griffiths.
“That test is framed at an objective, and undemanding level, disconnected from predictions of what the particular judge might actually do, because of the importance accorded by the Australian legal system to justice being done, and being seen to be done, by an independent, impartial judiciary,” they added.
The respondents didn’t accept the DPP’s argument for judge removal, as they considered there was no connection between her views about the DPP and the impartial administration of justice, that an impartial observer wouldn’t consider there was any bias on her Honour’s part, and this was because the DPP was not involved in their cases and the judge’s views concerned judicial independence.
Judge Wass’ 28 November 2025 submission to Portfolio Committee No. 5 – Justice and Communities, which was an “inquiry into identity protections for proceedings involving children”, suggested that the DPP had been okay with the media officer from her office, leaking a story to the press about the judge and an accused Indigenous child defendant, which illegally disclosed the minor’s identity.
In terms of ex parte communications involved in the Baker sentencing, Judge Wass set out in her reasons not to remove herself from TH that the lawyer from Baker contacted her in late October 2025, asking about the committee inquiry and her submission regarding the DPP, and then in late November, she’d shared a transcript with that lawyer and he then declined to make any redactions.
The NSWCCA too heard that the defence lawyer in the 2025 criminal trialling of Wayne Pettit had contacted Judge Wass on 11 December 2025 regarding matters relating to testifying to the parliamentary committee. This was ahead of an 18 December 2025 sentencing correction hearing set for Pettit that was to be presided over by Judge Wass.
Their Honours then underscored that Judge Wass should have disclosed this communication to the opposing legal party in the case, but instead, she kept it to herself and then made only a partial disclosure about this exchange during the 18 December 2026 sentencing hearing, while the full details of the exchange were withheld until the judge issued her reasoning.
Determinations of the court
On appeal, their Honours found that Judge Wass’ submission calling for the DPP’s removal did allege deliberate impropriety, and her Honour had made no attempt to report her ex parte communications with two lawyers: one representing Baker and the other Pettit. Her Honour rather proceeded on the idea that the matters discussed were extraneous and she was not required to disclose them.
Her Honour put several points to the court that included the impartial observer considering the exchanges were unsolicited, that when the judge spoke to Pettit’s lawyer the submission was available online, that no confidential material was supplied, that the exchange involving Baker’s lawyer was necessary so no child was identified and the exchanges had nothing to do with the cases.
But their Honours didn’t agree on appeal. They pointed out that the issue was not how the observer ‘would’ act but rather how they ‘might’ act, and further, that these incidents comprised a “breach of basic judicial standards”, that both exchanges were related to the submission, and the Pettit exchanges weren’t disclosed until the judge’s reasons were provided.
Another consideration of the court was that the ex parte communications referred to a “politically charged issue”, which meant any breach was heightened. The other matter that had been left unchecked was the question of whether Judge Wass was liable to unconscious bias in these matters to which the DPP sought her removal.
The orders of the day
The three-justice bench outlined that it didn’t regard this appeal as a “finely balanced case”, as Judge Wass had conceded that she made errors in the reasonings she offered to the court in respect of her decision not to disqualify herself from the three prosecutions.
“The making of the submission which contained serious allegations against the Director,” their Honours continued, “the participating in the ex parte communications with lawyers reserved before her, and the subsequent nondisclosure of the communications with one of them would each, considered alone, warrant disqualification.”
On 21 August 2026, the three justice bench determined that the appeal be upheld and the orders made on 10 July 2026, which saw Judge Wass dismiss the DPP’s Notice of Motion to remove herself from three cases be set aside, and that each prosecution – R versus TH, R versus MB and R versus Sharp – continue in the NSW District Court, but that they be presided over by another judicial officer.
