A Judicial Commission panel,headed by NSW Chief Justice Andrew Bell,said in a scathing report that Judge Robert Newlinds’ strident criticisms of the NSW Office of the Director of Public Prosecutions “render it inappropriate that he sit in state criminal matters for the foreseeable future”.
Robert Newlinds was appointed as a NSW District Court judge last year.Supplied
“We make a recommendation to that effect to the Chief Judge of the District Court to whom the matter will be referred. It will be a matter for the Chief Judge[Sarah Huggett] to assign the Judge to the criminal jurisdiction only if and when she considers it appropriate to do so.”
Newlinds’ criticisms of the DPP,made in a judgment in the sexual assault case in December last year,attracted significant publicity and led the NSW Director of Public Prosecutions,Sally Dowling,SC,to make a complaint to the Judicial Commission.
NSW Chief Justice Andrew Bell.Supplied
The accused had been acquitted after a jury trial. Newlinds said in his judgment “the trial was conducted in such a way that it was profoundly unfair” to the accused.
The commission appointed a three-person panel known as a conduct division – comprising a current judge,a former judge and a community member – to examine the complaint. It was headed by Bell.
Newlinds was appointed to the District Court in May last year. He practised principally in commercial law while he was a senior barrister.
The conduct division’s report said the “adverse commentary was propounded by a recently appointed judge who,in his own words spoken during the trial,doesn’t ‘do criminal law’.”
Judicial bullying
The conduct division referred to portions of the transcript in which the judge bullied the prosecutor,including by describing the case as “hopeless” and branding the office of the DPP “gutless” and “too scared to never run a case of sexual assault”.
Referring to another DPP lawyer,Newlinds said to the prosecutor:“So how would I know if that person’s got any more brains than you?”
The conduct division said “[in] our view,the characterisation by the Director of this extended passage of the transcript as ‘belittling,harassment and bullying of the prosecutor’ is amply warranted”.
In a letter on July 4 to the conduct division,extracted in the report,Newlinds said he recognised immediately after the exchange that he had behaved inappropriately and apologised.
He said he was “deeply regretful as to my conduct”.
“It represents conduct that I have experienced myself that I dislike and strongly disapprove of.”
Director of Public Prosecutions Sally Dowling,SC.Nick Moir
Vilification of complainant
The conduct division also found the judge had engaged in “quite unjustified criticism of the complainant”,which could be characterised as vilification.
This included by suggesting:“If the jury had known the full picture of the complainant’s history … the time of deliberation would have been measured in minutes.”
Criticism of DPP
Newlinds said in his judgment he was “left with a deep level of concern that there is some sort of unwritten policy or expectation” at the DPP that it would prosecute any sexual assault matter. He thought it took “the lazy and perhaps politically expedient course” of leaving it to the jury to decide.
The judge said in his response to the conduct division that he regretted the “lazy” comment and accepted his “unwritten policy” remark “went further than was necessary”.
The conduct division said the comments were “far more serious than a matter of inapposite,over strong or imperfect language”.
“It was fundamentally unjudicial conduct and inimical to basic procedural fairness of the most basic kind. It entailed,in our view,an abuse by the Judge of his power in giving reasons for his decision on the matter in hand.”
The panel said that “swingeing criticisms by a District Court judge … would readily be assumed by the public (a) to have a basis in evidence before the judge and (b) only to have been made after an inquiry into the matter based on evidence and a fair opportunity having been given to the object of the criticism to address it. None of that occurred”.
‘Borderline case’
The conduct division said it had “accepted as substantiated” each of the four grounds of the DPP’s complaint,including that Newlinds failed to exhibit judicial impartiality,unreasonably criticised and vilified the complainant,and made baseless criticism of Dowling and the office of the DPP.
It recommended he receive formal mentoring by more experienced judges and attend a meeting with former NSW chief justice Tom Bathurst,KC,after reading texts on judicial conduct.
The panel said in the report on August 19 that “[after] careful reflection and,on balance,we do not consider that the grounds that we have found to be substantiated are such,on this occasion,to warrant Parliamentary consideration of removal from office” for proved misbehaviour.
However,it said this was a “borderline case” and a “repetition of such or similar conduct may well lead a subsequent Conduct Division to a different view”.
The response
A spokesperson for the Chief Judge of the NSW District Court,the state’s busiest criminal trial court,said in a statement:“A copy of the report ... was received by the Chief Judge of the District Court on 20 August 2024 and is being considered.”
Newlinds said:“It’s not appropriate for me to comment.”
The report noted Newlinds told the conduct division that he had reflected deeply on the incident,in a reference to the “now conceded bullying”,and had put in place informal mentoring arrangements with judges. He had also sought out the Chief Judge and apologised.
Dowling said in a statement to staff:“As I have made clear on numerous previous occasions,I unequivocally reject Judge Newlinds’ criticisms and I remain steadfastly supportive of the professional,diligent and committed staff of the ODPP.”
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