What is a prosecutor for?
On 7 July, a committee of the NSW Legislative Council reported on how the name of a seventeen-year-old Aboriginal boy, sentenced in the District Court at Taree in October 2024, reached Sydney talkback radio within a fortnight. The committee found the story was supplied to 2GB by the Office of the Director of Public Prosecutions to provoke criticism of the sentencing judge, who had invited the boy to give an Acknowledgement of Country before passing sentence. A majority of the committee went further and found that the Director, Sally Dowling SC, gave it false evidence. Three members declined to join that finding, and the Director rejects it.
The false evidence finding has taken the headlines, and it may stay contested for years. The question underneath it is more useful to anyone who practises in this system, because it will outlast the personalities involved: what is the office of the DPP actually for, and what may it lawfully do when a judge makes a decision it does not like?
An office designed to be independent
The Director of Public Prosecutions Act 1986 (NSW) took prosecution decisions out of ministers' hands. That was its whole point. An Attorney General answerable to Cabinet should not decide who gets charged, and a premier reading the morning's papers should not decide who gets appealed. The Director holds office on terms designed to make her hard to lean on, and that independence is not a courtesy. It is the reason the public can believe a prosecution is brought on the evidence rather than on the politics.
But independence from government was never independence from law. The prosecutor is a party like no other party. She wins nothing when an accused is convicted and loses nothing when he is acquitted. The oldest description of the role is that the prosecutor is a minister of justice: her duty is to present the Crown case fully and fairly, and then to accept what the court does with it. A prosecutor who treats an adverse ruling as a wrong done to her office has misread the job description at its first line.
The channels the law provides
The law is not naive about prosecutorial disappointment. It provides limited options.
When the DPP believes a sentence is manifestly inadequate, there is the Crown appeal: defined grounds, a public hearing, restraint principles that recognise the accused faces jeopardy twice, and a decision made by a different court. Cases like R v KS [2005] NSWCCA 87 and R v Jasper [2003] NSWCCA 186 show the machinery in ordinary operation.
When the DPP believes a judge has gone wrong in a way no appeal can reach, there is judicial review. Director of Public Prosecutions (NSW) v Earl Burns [2010] NSWCA 265 is instructive because the office lost: the Court of Appeal heard every ground of the Director's complaint against a District Court judge, rejected every ground, and ordered the Director to pay costs. The grievance was tested in open court, the umpire answered, and the answer stood.
When the DPP believes a judge cannot fairly sit, there is the recusal application. The office used exactly this door a few months ago. In Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales [2026] NSWCA 20, the Director sought the disqualification of a District Court judge who, while part-heard in a trial the Director was prosecuting, had made a submission to a parliamentary committee critical of the Director. The Court of Appeal declared that parliamentary privilege could not validly prevent the recusal application being made and determined, and observed that a sitting judge making such a submission about a litigant before her was highly unusual; nobody at the bar table or on the bench knew of a comparable case. The obligations run in both directions, and the Court of Appeal said so.
What the law does not provide is a fourth door: extracurial pressure. No statute, guideline or convention authorises a prosecution service to feed a story to talkback radio to generate criticism of a judge, or to send an ex parte email to a Chief Judge foreshadowing consequences should similar rulings be made in future. An adverse ruling is not judicial misconduct, and the corrective for a wrong ruling has only ever been appeal.
What the courts themselves are saying
Before accepting the committee's picture wholesale, it is worth asking the only witnesses who see the office at work every day: the judges. I ran an analysis across roughly 2,400 published NSW decisions in which the DPP appears as a party, and every published District Court criminal decision from 2022 to 2026 — 1,773 judgments — searching for what the bench actually says about the prosecution.
The answer cuts in the office's favour, and that matters. Where the office is measured as a prosecutor, it performs well. Its Court of Criminal Appeal win rate under the current Director runs at roughly 74 per cent of decided outcomes, up on about 66 per cent across the preceding five years. Not one published NSW judgment in her tenure makes a finding of prosecutorial misconduct against the office. Judges more often commend its counsel: in a 2025 bail decision, for “a very fair and proper concession”; in a 2026 sentencing appeal the Director's own office supported, for submissions that “cogently” explained why the appeal should succeed.
The criticism that does exist is operational and case-level, and it clusters in two places. The first is disclosure. In R v Hansen [2022] NSWDC 746, evidence was excluded after a disclosure failure the prosecution itself conceded was “utterly unacceptable”; the judge described “the intolerable failure of the Crown to comply with its pre-trial disclosure obligations” and warned that “the Crown cannot be allowed to flagrantly breach those provisions”. The second is newer, and the two cases differ in where the fault actually sits. In R v Millard [2024] NSWDC 517, a judge granted a costs certificate after the Crown discontinued mid-trial, the complainant's severe psychotic illness having been documented in material the police and the DPP held from the outset. In R v LH [2025] NSWDC 535, a judge also granted a certificate, finding it had been unreasonable to institute the proceedings at all — but there the relevant material sat with investigators for months before the prosecution itself saw it, and the defence had to subpoena it; the failure lands mainly on police, with the ODPP downstream of it.
The office's own case
The reason the fourth door stays shut carries the office's name. In Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, the High Court struck down NSW legislation enacted to keep one named man in prison after his sentence expired, McHugh J describing the Supreme Court being made “the instrument of a legislative plan, initiated by the executive government”. New South Wales has no entrenched separation of powers of its own; Kable is where the constitutional protection of this state's courts comes from. Its principle is simple. A court that decides the way the executive wants, or is made to feel the cost of deciding otherwise, is not a court. And the courts already police the space between prosecutor and bench: in Gleeson v Director of Public Prosecutions [2021] NSWCA 63, a close personal relationship between a trial judge and a Crown prosecutor was enough to require recusal. Pressure shrinks that distance from the other side, and it is worse, because it aims at the ruling after it has been made.
The measure
Here is what the record, read whole, actually shows. An office that wins its appeals. A bench that mostly praises its counsel for fairness. Case-level failures of disclosure and of judgment about what to prosecute — the one place the litigation record rhymes with events from Taree, because each involved the office proceeding on a version of events its own file contradicted. And then one episode in which a sentencing decision the office disliked was answered with a media pitch rather than any of the three doors standing open.
That contrast is the finding. The Taree leak cannot be excused as incompetence, because it demonstrably knows how to win through the proper channels. The same office knew to brief senior counsel who argued [2026] NSWCA 20 with conspicuous skill. Independence was conferred so the office could serve fairness, and fairness is its product, not its private entitlement. The measure of the next twelve months is small: when a judge next makes a decision the office dislikes, watch which door it walks through.