The public has had a long held fascination with detectives. Detective sy aside of life, the average person is never exposed to. I spent thirty four years as a cop. For twenty five of those years I was catching killers. That's what I did for a living. I was a homicide detective. I'm no longer just interviewing bad guys. Instead, I'm taking the public into the world in which I operated. The guests I talk to each week have amazing stories from all sides of the law. The interviews are raw
and honest, just like the people I talk to. Some of the content and language might be confronting. That's because no one who comes in the contact with crime is left unchanged. Join me now as I take you into this world. Magistrates, by the nature of their work, are often criticized by the public for going soft on crime. And then you have, on the other hand, people they convict and sentence think they've been hard done by. It's a tough job burn a local court magistrate, but they
play a crucial role in society today. We're fortunate to have retired magistrate David Helpern come on the podcast and have a fascinating discussion about the life of magistrate, including everything from the time he held a sick bag for a prisoner, face death threats, and he's dealings with sovereign citizens and why he became known as the fuck Magistrate.
That's going to be interesting. If you have a preconceived idea about the person who sits in judgment of others, have a listen to what David has to say about the role. I think you'll be surprised and perhaps shocked about the person he is and his views on crime and punishment. It was a refreshing chat and one that opened my eyes up to the complexity of the role. David Hilpern, welcome to I Catch Killers.
Thanks so much.
Well, look, old habits die hard. So if I start referring to you as your honor, you know that I've got flashbacks to times in the witness box where I've been dissected by very clever legal people. So if I fall into that trap, forgive me.
Well. When you and I started in court, I think it was your worship.
Yeah that changed two thousand and four, I think around that time, was it.
Yeah, that's right. It stopped worshiping me and started honoring me.
So then either way, I was trying to give you respect, your honor, your worship. Sir, you were twenty one years as a magistrate. Did you come accustomed to people addressing you in that manner, your honor, your worship, that type of thing.
Never. It always felt completely bizarre. Really, I kept looking around wondering who they were talking to. It's such an artificial environment, really, the court, where you refer to people not by their name but solely by their title and of course your worship and your honor. They're meant to instantly give authority. But I sort of always felt that authority should be earned and respect should be earned, rather than just given by a title.
Yeah, that's an interesting way of looking at in my research that I didn't in preparation for it. I saw it was either in an article or an interview you did. You had some funny situations with the way that you've been addressed, and with someone in court trying obviously trying to do their best, but referred to you as your majesty.
Your majesty, your most worshipfulness. Yeah, you really got the full gamut. Your majesty was delivered by a by a fellow who'd only just immigrated from India and he was bending over backwards to show respect, so I just let it go.
It would have been a little bit embarrassing if you pull him upon that.
Absolutely. I also got called your holiness once as well, when I thought being elevated to the pope was really something else.
Well, I'm glad you didn't buy into your own own fame and the adulation that you had from people in your courts. But it's interesting the way you see people come in the courts, because it is a strange environment for people, isn't it.
It really is. And you know I always I mean you and I discussed this in preparation that by the time you've been a police officer for five or ten years, going to court just becomes natural and you're pretty relaxed about it. Yeah, Whereas for people who've never been there before, particularly young people, Aboriginal people, people from different backgrounds, it's
quite a scary environment for them. And I think one of the real functions of good lawyers, good prosecutors, and good judicial officers is to make people feel relaxed and not too uptight.
Yeah. Well, I think creating that relaxed atmosphere lends to a better outcome as well, because I've seen people that have literally choked in the witness box. I know the story or the information they wanted to provide, and that doesn't come out properly, and quite often it's because they're intimidated in a foreign type environment.
Absolutely. I used to in training other magistrates. I used to say, you know, courts should be like hospitals. Horrible things do happen there, but everyone's doing their best in this case to get to the truth and to get to a just outcome.
Yeah. No, it's important to create that. You talk about training. On occasions where I've been fortunate enough to speak to law students that are going to embark on a career in law, what I try to leave my talk with, or what I try to finish off with in giving words of wisdom in that environment is that don't lose touch with your humanity when you're practicing law. Like I'm speaking to people, I'm talking to them from a police point of view and things that I've seen and done.
But the importance of maintaining your humanity. Would you agree in that concept?
Yeah, for sure. And you know, I mean, I think it's part of really maintaining your sanity in these jobs, because if you lose your humanity, then where's your touchstone when things start going wrong? You know? I mean, I think most people join the police, most people join the legal profession because they care and they want to help other people. But if you lose your humanity, I think you can be making mistakes and errors of judgment that
really impact on other people. I always tried to remind myself that I was just a human being trying to do my best in a difficult and very hot house environment. And if you start from that perspective, with a bit of humility as well as humanity, then I think justice is better served. And I mean, I'm sure we've all seen that in really good police officers too. They maintain their humanity, they realize that they're human and we're all just doing our best in a pretty difficult system.
Yeah, I look, and I agree wholeheartedly what you've said there, But I've also seen people that lose their way because it's an adversarial system, and I see defense and prosecutors going at it like it's a game of sport, and I'm sitting in the court with the victim whose life's been turned upside down or even the person appearing before the court. And I think sometimes that can be disarming to people involved in it, that they look and go,
what's going on here? We're talking about my life because it is high stakes in the court.
System, absolutely, and there's a difference between an adversarial system which we have and a competitive system which we shouldn't have. It's not actually about winning or losing. It's certainly about ensuring that your case is presented the best it can be from a prosecution or a defense point of view and from the judicial office point of view, that everything
is explained and that people understand what's going on. I mean the number of times I'd sentence people and go into language that's a bit two technical or jargon and they wouldn't have a clue what had actually happened. That's
got to be avoided. And also that over competitiveness. I mean I had lawyers and prosecutors almost come to blows yeah at the bar table, and you know, you feel like saying, children, you know, we're not actually getting to any point of having an evidence rightly if you're presented so that I can make a decision when you're going at it like that.
The lost sight of what it's about. I'll do a segue because you mentioned language, and I think i'll bring this up. I was aware of the work that you were doing at various times in your career when you're a magistrate, and I was a police officer in homicide, so doing a lot of work around the state in different areas. But you did have a name. I'll let you explain it the fuck magistrate, do you want to explain?
Explain that it's true and it's a bad chize still to this day, where with some pride, look, I think we'd all been aware of the trifector, but I honestly hadn't seen it that much in my career as a defense lawyer and occasionally doing prosecution matters. But when I went out to western New South Wales as a very young magistrate, I was sitting in towns like Burke In Brewarrina, Cobabo.
Every second or third case was what they call a trifacta case where someone's arrested for offensive language and then they put up a bit of a stink and they're charged with hindu police or resist arrest and assault police, all because of language. And almost without exception, it was the word fuck, And I'd been brought up on Triple J and I'd watched movies and television and the word that Alvin Purple, and you know, it had started to
be used really regularly. Yeah, people were getting arrested for it. And it's not as though they were being arrested for saying it in church. They were being arrested for saying it in the street. And I had a case where, or two cases really, one where a a bike that was suspected of being stolen was being taken by a police officer and the young Aboriginal man who took who it was being taken from, saying you're not fucking having it, and they said you're under arrest, and that was it.
It was on and the trifector in the second case where a woman down at the South Coast was swearing in a domestic violence situation where she was the victim and the police had attended the premises and she had lost lost control really and certainly was swearing at everybody. But in both those cases, it seemed to me to be ridiculous to arrest people that is deprived of their liberty for an offense that carries a maximum penalty of
a fine. And so I just heard argument from a barrister by the name of Mark Dennis, who is now an sc and he said, well, I'll put it to you. The words not offensive anymore. It's lost its punch, and really this is just an unfortunate use of police powers to deal with another problem, which is disrespect, or another problem which is not being able to control yourself in
times of stress. And I accepted that argument, and I found that the word was no longer offensive and dismissed charges against people and there was no appeal, but there was complaint. Some police didn't like it, and sixty Minutes did a big number on it, and the police commissioner came on sixty Minutes and said, well, you know, I think he's probably right. I've used that word myself. Yeah, that was the end of it.
Really, like the law is set in precedents, and yeah, it goes back a long way, but it's got to be able to serve the community that it's operating for. And I think, congratulations on you taking that stance on that, because I thought it was a shortcut for policing. It sort of it fitted in early days in my policing. I think we could rest people for being intoxicated or vagrant, and that was just the excuse. Okay, I've got no real charge. I take this person off the street. And
that's what you were talking about. And there was times when it was abused, and you say the big three like offensive behavior, right, you've said the word fuck. Now we're going to arrest you. When you resist, that's going to be resist police. And when you push this, that's assault police. And these people are fitting there. And I didn't like the culture of police and probably police that I didn't respect talking about Oh we'll give them the trifecta. Yeah,
it was a horrible way, So congratulations on that. But I'm sure you the shock jock type situation. People were to push back and go, who is this soft magistrate? He's going soft on crime. The sky is going to fall if we allow people to do to swear.
So, yeah, it's a funny thing because you know, you bring your own, your own culture, you bring your own humanity to the bench, which is something I think people don't realize. So that I think I was much tougher on domestic violence, much tougher on drink driving than many magistrates, but certainly much lighter when I thought that things have changed and the law doesn't just stay stable, it doesn't
stay in one spot. And while words like that were certainly offensive twenty thirty forty years before I made that decision, things actually move on. And I think these days, you know, I'd hesitate to say it now, but the N word, when you refer to people who are colored, Yeah, I think that word is far more offensive than the word fuck is today.
Well, you'd get the more reaction from someone if you said that. If you're throwing out the F word, No one's going to batten nyhii it if you said the other word, people would. I agree. And when you're looking at it, the definition of the actual crime is that you've offended people. I took offense to the fact. And
I say this jokingly. I thought it was quite funny that there was an article written about it in your Stance and they reference was it chuk Fouler, the infamous corrupt detective in the Royal Commission?
Every second word that came out.
Yeah, where we all sat at home watching his tapes in his car or whatever, and he was using the word as a punctuation mark and yeah.
Totally, totally, Well, I thought it was funny that someone said to me that his shorts were more offensive than his language.
Bringing back there those images. We should move on from that. Yeah, I do recall where they had the camera. It wasn't a good good position. Tell us a little bit about your your background, where did you grow up and how did you find your way into law.
Look, my dad was a lawyer, and my uncle, Howe was a lawyer and then a Supreme Court judge hol Spurling, and there was a lot of law talk around our kitchen table. My dad was very involved in civil liberties and in prisoner Action group, and he was chief of staff to Frank Walker, the then Attorney General when I was a child, so I got brought up in a
hot house environment of law. I of course rejected that completely and wanted to be a vet because we grew up on a farm in Bathist and I thought that's it. But I missed out on the marks to be a vet just by a couple of marks. And in those days, whatever mark you got, that was it, and vet science was much higher. So law was my second choice, but I never regretted it. Really. As soon as I started at law school, I had some absolutely inspirational fellow students
and inspirational teachers, and I loved it. I love it to this day. I find it's interesting and exciting and intellectually challenging and morally challenging the kinds of dilemmas that the law brings up. So my background was being brought up in that environment. But I went to Bathist High School, so I wasn't from a private school. And I did
my law degree. I moved to Sydney to do law and I hated living in the city, so I moved back to Batson, did it externally and when I finished, by then I had a couple of kids, so it wasn't a question of to finish off. As most people would be aware, You've got to do another course, which is called the College of Law or the legal workshop, and to do that I got off at a scholarship to do that in Canberra with A and U and
the Australian Attorney General's Department. So I joined them, and then didn't like living in Canberra either, realized I was definitely a country boy, and got a job with a law firm Inkyogle, which and opened a branch office in Nimben because I loved Nimben. I thought it was the center of the universe.
Okay, I've spent a bit of time at Nimban myself. Were you the radical, going to change the world type UNI student and taking on the world? Was that your thing?
Yes, I think you could say that. I was involved in protests. I don't know if you remember a case, but there was a case called Island Roberts where she'd killed her husband, Bruce, and she'd got life imprisonment, and I think my first set of demonstrations were to do with releasing her from custody when really she was just
trying to defend herself against domestic vinds. It led to the change in law for provocation as a defense, and you know, at that time the Tazzy Dams marches were happening, and so yeah, I thought it was a great chance to enjoy myself, meet interesting people, particularly the opposite sex, and get involved in politics.
Okay, so I'm getting a picture of the type of person you were, and recreational drugs in that environment. I think statute of limitations a pass that and I haven't cautioned you, so I think we can speak openly about that.
Indeed, and I've been open about that that. I mean, I should say that in those days, it was very unusual for people to use any drugs other things, just cannabis. Yeah, and I certainly inhaled and exhaled, fortunately.
Not to President Clinton.
And I really enjoyed it. I thought cannabis was a terrific drug for me. I didn't like drinking. I didn't like being around people who were drinking that much either. It was pretty agro, whereas smoking was very mellow, and it helped me weirdly focus on my studies enormously. I mean, I did well with my studies. And I know that it's unpopular to say, but for some people it really helped slow me down.
I think it's interesting with the drug situation, like when we're talking cannabis and that I know people that, yeah, that drug suits them at whatever it does. It balances out other people that if they touch alcohol, they're going to turn into a night there, you know, or other people can deal with alcohol. It's an individual thing. The effect that has on you living that type of lifestyle. Do you think that served you well when you did eventually start practicing.
Law, Yes, I think it did. I mean I joined a small firm that was, and I was doing criminal defense work, doing legal aid, doing aboriginal legal service work, and of course moving to the Far North Coast and having a branch office in Nimben. A significant proportion of my work was drug work, and no one was really specializing in that much. But I enjoyed that kind of work. I enjoyed the clients. I enjoyed the repartee with some
of the elements of the drug squad. You know, we loved to hate each other and teased each other on the winds and losses that we had. Probably far too competitive, but I enjoyed the work environment, and I enjoyed that doing drug work, and as you can imagine, there was plenty of it. There was a lot of people being arrested for cannabis plants. It was at the days of the helicopter raids where crops were routinely being seized and burnt and people arrested. There was a lot of people
charged just with simple possessions. And yeah, it's sort of motivated me to speak up and speak out about why the law needed to be changed. And I guess I felt completely hypocritical as well, because I was a person who not daily, yeah, in fact, not even weekly, but if I went out, I really liked and enjoyed to have a smoke.
Yeah, yeah, I can understand the conflict there, but that was the environment. Like Nimben. I spent some time up there, not working, but also time up there when I was working, And it was quite funny driving up there, even an unmarked police car. You'd pull up to a commune and the whole commune and disappear into the bushes, calling out
government car, government car, just disappearing. And I just a side note, I had a conversation with a family up there, and they were most distraught that they raise their children in very much the nimb and lifestyle, and their children had rebelled, and they were disappointed that they're trying to get careers and they're getting jobs and different things like that.
And it's an absolute tragedy when that happens.
Yeah, they raise them with all the right veys.
When you call someone poss rainbow and they still become an accountant, you've definitely failed.
Defense. Did you ever consider prosecution? Did you ever go down that path?
I did do some prosecuting. I did one of our clients, or several of our clients were local councils and I did some prosecution work there, and there is no doubt that the best training to be a defense lawyer is
to do some prosecution and vice versa. A maide of mine who's now the Minister for Local Government, Ron Honig, was a public defender for many years and then he did a stint in the Crown prosecutions and he said to me, I learned more in that six months about being a good defense lawyer, in fact, just being a good lawyer. Yeah. By swapping the side of the fence, and I think doing the prosecution work for local councils for people who had built dangerous structures or had committed
other environmental type offenses. That was really powerful training ground and also showed me that things weren't quite as black and white as as I thought they were. It also showed me that a good prosecutor and a good defense lawyer together can really get to the truth of a situation, normally get an a greed set of facts, normally getting agreed plea, and there's no need for all the difficulties. I did find really quickly that I did not like
defending sexual assault cases. I found them grueling, and I never felt comfortable in the role of cross examining victims of sexual assault.
Yeah, I would imagine that I know a lot of people in the legal sector, and that's pretty much across the board. That's harder the fences, and sometimes it crosses that line. That must be hard doing that, jumping between the two sides. And you know, as you said, coming to a situation where both parties are amenable, having agreed set of the facts and resolving the situation fairly. That's the ultimate goal, isn't it that you want to achieve in that environment?
Absolutely, because it means that everyone knows where they're at. And it also means, particularly in violent crimes, that people don't have to give evidence. And I think we would all agree that the process as a victim of crime of giving evidence can often be well, it's often described as being worse than worse than the experience itself, you know, and I think having to relive it and all the
difficulties associated with that. And the other thing is there's a good rule in law which is if you plead guilty, you get a discount. Yeah, and that it's not as big a discount as people realize, but it's a real currot as opposed to to a stick. From a defense perspective and from a prosecutorial perspective.
Yeah, I see the benefits of that. Then I never got bogged down. I know people have really strong views on sentencing and all that, and I personally don't like in the whole range of offenses where they talk about mandatory sentencing on offenses. One thing I've learned watching people go through the courts is that each case is unique in its own own way, and to put a blanket a mandatory sentence for if you're convicted of this offense doesn't always fit the crime.
I totally agree. I think there's a problem with our sentencing system, and that is that the prosecution don't appeal enough. It's very hard to get the DPP to appeal a sentence, particularly from the local court, and what that means is that the whole appeal system is skewed, so only defense lawyers appeal and then magistrates are sitting there getting their sentences lessened more often than not. And in the whole time I was a magistrate, I never had one sentence increased.
In fact, I never had a New South Wales DPP appeal against a sentence. Now that's just wrong because I'm sure I was too lenient on occasions. I mean, you try not to be and you try and err on the side of right, but the system is skewed and it shouldn't be and we wouldn't need mandatory sentencing if we had a decent and proper appeal system.
Yeah, it's interesting the appeal system. Out of all the aspects of court, I found the appeal system. I could sit in court being involved in appeals and it just seems so complex, the appeal system. Quite often I'd sit there and I think I've got reasonable intelligence in trying to understand the process of courts. But I've got to say sometimes I've sat in court, especially appeals at the High Court, and I'm sitting there, going, what are we talking about here? It's very complex totally.
And then one of the great things about being magistrates is you never had to deal with anybody else's appeals because you were right at the bottom of the barrel. You were at a court of first instance, and yeah, you know, it was just it was just you were the first one to have a go and if people had a different view, well that That was fine by me. I never got upset by appeals, and you're right, I often didn't understand them either.
Yeah, just on this nuanced point of law that would just go over my head sometimes. How long were you practicing law before you became a magistrate? How long were you doing that for?
I was practicing for about ten years before I became a magistrate. But during that time also I got invited along with another local lawyer, to help establish Southern Cross University Law School, and so I was a part time lawyer for the last four or five years as we set up that law school and I became an academic at it. It quickly was really apparent to local practitioners
in those days. If you wanted to practice in New South Wales, you had to do your degree in New South Wales and you had to get admitted in New South Wales. So all the lawyers on the far North coast would have to Anyone who wanted to be a lawyer from a rural or regional area in New South Wales had to go to Sydney, and that was just so it was really difficult for many people. It was a barrier. So we thought, well, let's start the first non metropolitan law school in Australia which.
We did that you've spent four years. There was it ninety eight that you was at research that you did in prisons and wrote a book about Can we talk about that before we talk about your role as the magistrate. That was before you became a magistrate.
It was I was representing a young man from the Gold Coast who'd come down to Tunneble Falls community and conducted a raid. Now that sounds like a police action, but in fact hippies were pretty vulnerable to people coming in garments and stealing their crops and he had been involved in that. He was nineteen and going on fifteen. And when his bail was refused, I said too. It was in the district court. I said, you know, this young man is likely to get sexually assaulted in prison
and that's why you should give him bail. And the judge said to me, well, where's the proof of that, where's the proof that anyone that that happens? And Corrective Services minister had said, well, rape is inevitable in prison and I quoted that. The judge wasn't too impressed with that, and I thought, give me a chance. I'll go and get some I'll find out there must be research on it. And I found out that with in Australia there was none,
absolutely no research. So that case that young man was bail refused and after he was sexually assaulted in prison and he killed himself, that really motivated me to start
researching this issue, and so I got some funding. And I suppose also I was motivated by the fact that I was an academic who didn't have a higher degree, and that was a bit of a no no. So I decided to do a high degree in research, interviewing three hundred prisoners aged eighteen to twenty five as to whether they'd been assaulted or sexually assaulted while they're in prison, and unsurprisingly, about one in three had been sexually assaulted
while they're in prison. Sometimes that took the form of what we would call rape, but often it was a protective pairing. In other words, they would pair with someone who was bigger, tougher than and would protect them in exchange for sexual favors. So that research was published and
caused quite a stir. It caused a few things, the segregation of eighteen to twenty five year old prisoners with each other, rather than older prisoners, which was I think a start the introduction of condoms into prisons which exists to this day, and because the HIV AIDS was huge at that time, and also a recognition that technology has huge and obviously an ongoing role to play in keeping
prisoners safe. So I then published that research as a book and some fun touring with that in the United States in particular where it became Unfortunately, I donated the royalties very early on. I wish I hadn't.
Just didn't think clearly enough on it.
I just thought it wouldn't sell many.
But the book Fear or Favor Sexual Assault of Young Persons. I'm reading through the parts of it, and yeah, the statistics that came out were quite frightening. And when you talk one in three and even as a police officer, and very much as a police officer, you had empathy on what you were doing, but you didn't really consider
what happens when you send people to prison. But there have been many times when I locked people up and I know what happens in prison and the type of people in prison, and you think what's going to happen to them doesn't really fit the crime. They've committed and it was almost you look. I looked with pity and thinking this is terrible. I know what's going to happen
to this person. They will not be able to look after themselves in prison, so they'll either have to pair up with someone for protection or they will be attacked in the full on sexual assault. And the impact that has on people, As you said by your client, that a result in him taking his own life.
And let's face people who go into prison and are victimized are not likely to have great self restraint learn the kind of skills we would hope they learned not to re offend in that kind of environment. Of course, it means they wouldn't want to go back, but as we all know, criminogenic behavior is partly willpower and partly circumstance. So I hope things have improved. I suspect they have.
I think that there's many more avenues for complaint, a lot more protection, and the technology means that most areas of prisons are now covered by CCT.
Well the technology, and I spent some time in prison of recent times doing a podcast series, and I was fascinated by the technology that's available now that it might be the offense or an assault happened now, but they can look back at all the movements week prior to that and from all different angles, and yeah, it has to make it more difficult. But I've seen not so much when I was in the police because it wasn't
the type of conversations that I would be having. But since I've been out of the police and people I've met doing this podcast the effect that that has on people.
And there was a person sitting here in the studio, Russell Manster, who's sadly passed away, but talked about being sent to a prison as a seventeen year old and putting a cell with to sex offenders and just brutalized for days on end, and he came out angry and subsequently spent the next twenty years in and out of jail, and his whole life was dictated by this is never going to happen to me again, yep.
And I think that undertaking research like that was important but also showed me that there's more ways to change things protest, and that the role of academia in society is actually really important when it picks up on it and is able to highlight you know, not things that are obscure, but things that are fundamental. I mean, any of us could go to jail. That's the reality. Me for my price sins, you for your price sins. We could all end up in jail, and if we do, we should be safe.
Yeah, that's not part of the punishment. And you're quite right with the academic study, the research and all the information that can back it up that when this next young lawyer like you were at the time saying, well, I'm concerned about what will happen to my client, and here, in fact, there is a study that shows yeah, it does carry weight. I think I'd like to think and a shout out to correct New Services and just a
bit of a bit of a stay. But I went to and you practiced in Wellington, or you've presided in Wellington the mcquarie Correctional Center, where they're approaching prisons a completely different way, and a lot of that is that the prisoners feel safe. And I'm not just talking about sexual assaults, but in that environment, prisoners are treaty with respect.
I hadn't seen a jail like it where they're calling the corrective services officers by names and there's mutual respect both sides shout out not only to the prisoners but corrective services officers. They work for six hours in whatever industry they could find within the prison, and they study for six hours and then they all stay in the dorm. The interesting part of all the prisoners residing in the dorm,
I thought there'd be a bloodbath. I thought, yeah, maximum security prisoners twenty five in one dorm where they're pretty well free to roam and do what they want. It actually taught them social skills. And I joked with them in there, and subsequently that if there was someone within that pod, the twenty five that they didn't get on, they'd almost like one of those reality TV shows, vote them off the island. We don't like this person, could we move out? And I've got to say I was
so impressed. And it hasn't been running long enough to see the after effect the studies that once they've been released from prison, But the majority of prisoners I spoke to in there said what it sets us up for is that it teaches us how to integrate back into society. And yeah, these weren't all the do good at prisoners.
These were some hard cases, you know, the people that we all would have heard their names in the media for the crimes that they've committed, and some of the younger blakes, and there was a lot of people in there for lengthy The food there was very good because there's a lot of chefs, because chefs got involved in drug dealing or who would have guessed, But there were
people serving lengthy custoviial sentences. And they said, when we're in other prisons, the more traditional prisons, every time we walked out of our cell, we had to bridge up and get ready to take on whoever was going to come at us. And there'd always be someone here. They felt safe, they could relax, they could let their guard down. And I've got to say I was so impressed, and I honestly hober gets that type of prison gets integrated across the board.
Look, there's some great things happening in that area. And also some of the specialist Aboriginal units are really doing some great work with Aboriginal young people and Aboriginal adults in terms of connection to culture, and the studies show that that leaves will lead to less likely to reoffend. The enemy of a good prison system is the tabloid media,
often having a go at it being too soft. You know what the real outcome that you want from a prison is people not to return, and we've been failing at that. About seventy percent of prisoners will go back within five years. Now, prisons like you've just maybe you're not going to get to eighty percent not returning, but you might well get to fifty or sixty or seventy
percent not returning. And it looks, you know, the Henry Lawson wrote in I think nineteen seventeen when he was in prison, he said, the press are printing their smug
smug lies and paying their shameful debt. They talk of the benefits prisoners have and the things that prisoners get, and you know, we need to look at prisons and go I don't actually care if there's great education or great physical surroundings or good food or whatever, as long as people are less likely to defend, because particularly violent offenders,
that has such a long lasting impact. And we know that most violent offenders are domestic violence offenders, and we know the impact that has on their children and their children's children and their families and their partners. And we're just anything to put a stop to that. I don't care what it costs or how soft it looks.
Yeah, well, David, when I spent time in there, and there was a couple of weeks and I thought, am I going soft here? Am I taking that prisoner aside? Because you had that go soft on crime? What am I talking about? The next cop go soft on crime? I spoke to Ken Marslu His son was murdered in an arm robbery. Just a young fella working at the pizza hut, paying his way through university and an arm robbery and he was shot and kill. That was a
horrendous crime. And Ken was very angry and campaigned and led enough is enough and different different campaigns, mandatory sentence in getting tough on crime. And I've become quite close with Ken since I've left the cops. We knew each other before, and I rang him on, Okay, this is what I'm seeing in prison. What's your take on this? Ken? And he said, that's about getting smart on crime, not getting tough on crime. If we can reduce crime, there's
less victims. Everyone wins. And yeah, that strengthened my resolve. That. Okay, that's if anyone's got the right to really question what goes on in prisons at someone that's lost their child in circumstances like Ken did, and yeah, I think everyone's a winner. And as we're talking the other day the cost of keeping prisoners in custody, that what if we channel that money somewhere else to rehabilitate diversionary programs that keep people out of prison. Has to be a benefit to.
It, absolutely, And the other whole aspect of that is, well, who's in prison and who needs to be in prison if we make sure that you got the right people, the people who really need to be detained. And you and I both started in an era where fine defaulters were thrown into prison, where possession of a small amount of drug led to a prison term. Whereas you know,
we've rationalized that to an extent. We need to always be focused on that if the right people are in prison, the community is protected, and not just immediately but in the medium to long term. If they're treated like humans and given responsibility and learned decision making processes.
Well, if they're treated like animals, they come out like animals. And I've heard prisoners say that, but even the prisoners in these maximum security prisons acknowledge that society is not for everyone. Like there's people in here and they'll point to them, go that person should never be released, and yeah, there's one of the people that society need to be
protected by. Okay. Magistrates, Yes, when describe the role of a magistrate, because people look at the magistrates and I'm surprised, I'm constantly surprised how many people never actually experience court. And it's yeah, there's only a small percentage of either the ones that commit offenses or the ones that have been caught up in witnessing a crime. There's a lot of people that never see and inside of the court. So what is the all of the magistrate? How would you describe it?
You know, the magistrate is the call fates of the criminal justice system. Every single case starts, every single criminal case starts in the magistrate's court. But at such a very job. Magistrates are also coroners, so we also deal with cronial matters. Magistrates also have a civil jurisdiction, so disputes between people up to one hundred thousand dollars are dealt within the local court. But crime, all crimes start
in the magistrate's court. And what that means is even a murderer will start in the magistrate's court and then go up to high courts, But about ninety three percent of all cases start and finish in the magistrate's court. And they used to just deal with summary offenses, traffic matters,
very minor offenses. But over the years, the efficiency dividend of having just a magistrate, not a judge and jury determining matters means that the jurisdiction has expanded, So magistrates deal basically with people who've been charged with the vast majority of offenses and determine their guilt and if they're guilty,
determine their sentence. So the average day of a magistrate would be dealing with a defendant hearing, for example, where someone's pleading not guilty to a domestic violence offense or a cultivation of prohibited plan defense or a white collar crime, or more likely than not, a traffic offense, and determining
if they're guilty. The maximum penalty magistrates can impose this five years imprisonment, so nothing like the district court which has unlimited and supreme court, but still the nuts and bolts of the criminal justice system revolve around the local court and the magistrate sits like a judge, but without the superannuation.
And without the wink and come on, David, let that go. Let that go.
I've let it go, or associates for that matter. But so there's magistrates in every country town either ones that come in each you know, up to certain size. So even small towns in this area, places like Kyogle and mullam Bimbi and MacLean will each have a magistrate visiting them, you know, once a week or once a month, or a few days a week, or in Lismore and the
bigger places every day. So magistrates are at the coal face of the criminal justice system and they are the judicial officer that most people will come in contact with. Just in New South Wales now they're called judges of the local court starting next year. Yeah, I heard that and it's been the case in the Act in the Northern Territory for a while and I think it reflects better the role. I mean, who knows, You're right, people don't know what a magistrate does, but they'd be more
likely to know what a judge does. And really they're just judges of the local court.
Yeah, I would imagine it's a lonely job. Sitting there, and I say that from my observations, like the prosecution they've got their team, the defense have got their team. People in the gallery, the media are hanging out doing what the media do. A magistrate all on their own and making some very big decisions knowing that they're potentially going to be scrutinized by some very informed legal people sitting above them for different matters.
Well, and not just scrutinized by them. When I was first appointed, my first appointment was Dubbo and the local member was Jerry Peacock. And never had you met a more law an order a person than Jerry Peacock, who also owned the local newspaper. So you can imagine it was a real tra effector so. But yes, it is lonely because lawyers tend to mix with lawyers in a country town. And you know, I was a country practitioner. Most of or a lot of my friends were lawyers.
And then you go to the bench and of course you can't mix with the lawyers because they're before you. So it is lonely and country magistrates by their very nature, sit on their own. It's not like the Downing Center or one of the big city courts where you might have twenty magistrates and you can all get together at more morning tea and have a chat. This was and shortly after I. I mean, you know, believe it or not. When I started, we used to have morning teas with
all the lawyers and all the prosecutors. The police sergeant's wife would traditionally put it on and we would all gaggle and sort out the cases. Well, that was soon thrown out quite rightly, but it did mean that it was our pretty lonely existence. And you know, I was living in Dubbo and you know, you're buying a newspaper and the newsagents say why aren't you locking people up more? And you go to the checkout and the young woman working there saying, hey, you're not going to lock my
boyfriend up, are you? And you know, so you couldn't avoid the area.
That's like I hear the dramas have been the local cop that you're never really off duty. But yeah, it's pressure times ten when you're the magistrate of young Susie's coming before you next week. She's a good girl as you're buying your cup of coffee or something like that.
So it's I think It is really true of local sergeants too, And I think policemen's kids like magistrates kids, you know, they get a hard time at times.
Yes, well, when did you make the decision? So you practiced law for a period of time and then you set up the university, the law faculty there, when did you decide that I want to be a magistrate?
Jeff Shaw was the Attorney General and he and I had had some arguments about a whole set of things. We got on very well, but he was sick of me pestering and about law changes I wanted to see, and he said, I'm going to stop having to deal with you soon, and I said, well, good luck with that. And then I got the phone call that you least expect, which was from the Attorney's the Governor's private secretary, which was to offer me offer me a job as a magistrate.
And I thought, well, you know, I'd come across some really good magistrates in my time, there was one phil Molean who since passed away. But I'd also come across some terrible magistrates who I had very little respect for. And I thought, well, I can do this job. Well, I can change the world. There's things that I really want to make a difference on aboriginal over representation, drug laws,
you know, things like that. And so I went into it with the usual gusto of a good lefty protester and thought I could really change things from the inside. And that's that's why I did it. Also, you know, to be mercenary about it. It meant it was more than a doubling of my salary. It looked like a terrific secure job until you're at at that time, till you're seventy years of old, and I thought, well, this is this is pretty good.
Now. Dubbo is where you first posted. That's a tough area to be the local court magistrate. I've spent a lot of time in Dubbo, not work there, attached there, but through murder investigations and the reputation of the town, you would have a lot of people coming through through the court.
There, absolutely, and you know, the magistrates out there aired the circuit work as well, which was really hard towns, towns that were racked with really deep social problems and the criminal justice system. The police and the magistrate and the defense and the prosecutors were meant to solve these problems and of course we couldn't. We were dealing with the we're putting a band aid over a gaping wound
of a whole range of different things. And you know, I would sit in many towns where the only people I would ever lock up were Aboriginal people and that's depressing.
And look, I'm very much aware of the problems and the high representation of the Indigenous population in our prisons and in our court system, and it's it's quite alarming. I have an association with a lot of Indigenous people and through them a work mainly through a workers as a police officer, and I know that I always felt they were disadvantage in the justice system. They weren't comfortable
in the court, see situation. There was a whole range of things that made me feel that there's a reason there's a high representation there and the problem is not going to be fixed the way that we approached that. What's your take on it, because you would have seen a lot of that I would imagine in the areas like Dubbo and out from there.
Yeah, it's a disheartening. It's one of those wicked problems that and I think the first thing to recognize is the criminal justice system can do very little. By the time people get to court, by the time they're committing offenses, by the time their families are dissolving, it's too late to do that much. And certainly, you know, imprisoning and the like, and the extent of the problem was and
is overwhelming. I was really blessed by having great prosecutors who saw the problem and bent over backwards to do what we could within the limitations of the system to deal with people appropriately, and of course talented, young, idealistic Aboriginal legal service lawyers who any of whom are now the judges and politicians that we are from all sides of politics that speak sense to this issue. So we
muddled through, but it was overwhelmingly depressing. I remember a young man who in Wellington Local Court who said to me, I sucked his lawyer and said, I'm guilty. He'd robbed a bank with a syringe. He said, I'm guilty. I just want you to lock me up, but I want to go to the big House, meaning Bathist jail. And I said, well, why do you want to go there?
And he said, well, my dad there and my grandfather's there, and I'd really like to spend some time with them, and I just you know, that sinking feeling and the pitious stomach saying that's what you aspire to. So it was really quite overwhelming, and we could tinker at the edges. But the problems of Aboriginal over representation in the criminal justice system are largely not about the criminal justice system. They're about the education system, and they're about health. They're
about lack of welfare and support. And we know that programs since then, you know, are like justice reinvestment, like circle sentencing. None of that existed then. Many of the sentencing options that are available community service work didn't exist then, so you know, we were very limited. It was very difficult. We all had the goal and I mean the police as well, had the goal of keeping people out of jail as much as we could and keeping and keeping
the community safe. But it was an uphill battle and inherently depressing. I don't mean that from a clinical point of view, but it's just like the drudgery of it.
Really. Yeah. No, I'm hearing what you're saying, and I pick up on the fact that we can't fix it, that the justice system and prevention is better than cure and if we can prevent them going down that path, like the indigenous communities, and when you talk about a grandfather in prison and the father in prison and the young film, I wants to go in there to to seeze relatives. That sort of breaks your heart, doesn't it.
That's what hope has that young fellow got. I've heard people talk about when kids are going off track and like restorative justice and diversionary programs. With one person that might have been Jaron Badge, an Aboriginal lady that grew up in the block and joined the police, very very
impressive person. She's out of the police now, but she talked about a person that was a young fellow that was sentenced for minor crimes that might have been a bible stealing a bible of something, and instead of a sentence, he was told to hang out with one of the elders and go fishing with the elder for a couple of weeks. And I think, what a great idea something like that is that could potentially make a difference, break that cycle.
I saw that a lot with circle sentencing. When I was in Lismore for ten years, we ran a circle sentencing and so that meant that offenders who pleaded guilty, instead of being sends by me, went before a circle. And the circle included the victim of the crime, the police officer involved, and a circle of elders as well as the defense team and all the rest of it. So it was a big circle. But you know, there was more often than not there was no dry eye in the place. You know, it was emotional and it
was genuine, and it was it was doing that. It was seeking to utilize the wisdom and respect for elders to affect a proper sentence that would be less likely for people to re offend. And of course it's proven to be so, which is why circle sentencing is universally seen as not the solution, but as part of a solution.
And if we put our efforts in and our money at that point in time, maybe we don't have to spend the money we do down the track with people when they're incarcerated and all the impact that.
Has absolutely And you know, I finished up ten years on the circuit at Lismore, done and I said to some one of the eldest the very last circle that I did, you know, I really miss you guys. I've learned so much. I'm so glad for your involvement. And I just wondered how much you paid for this and they said, oh, we're not paid. And I said, this is every week ten years we've been meeting as a circle.
And they go, yep, yep, that's my own time. Not paid a cent, you know, And I thought, there's the defense lawyer and the magistrate and the police officer were all being paid, and the eldest themselves. This is their input into the next generation that they care so much about. And you know, it was really showed the commitment of those people.
David, you touched on something that I learned very much. After I left the police. I thought I was a big, tough crime fighter and making a difference on crime. And when I've stepped away from policing, I've looked at some people that are doing stuff exactly as you've just described and not not getting paid or doing it just because it's the right thing to do, and they're making more difference on reducing crime than I ever could with a pair of handcuffs and a gun.
Or sitting on the bench with a gavel.
Yeah for sure. Yeah, And I would imagine that would be part of it. There's a magistrate feeling that frustration. I can see it, I can feel it, but there's nothing I can do about it. It's a system and the systems set up, and I don't I can tell that you care about the job that you do, but I don't see you as someone that's just naive to the fact. You know, Coulby, let everyone walk free and there'll be no problems people the society. Society do need
to be protected. But I heard an interview that you did where you're talking about a young fella that couldn't be given bail or he couldn't be released because of the nature of the offense, and you ended up catching a plane with him. Do you want to just tell that story? Because when you talk about dry eyes, I was walking along listening to you on that talking about I thought that's really really sad, and you could just picture it.
So we used to fly into circuit courts and Brewarrener was one of those courts, and when I got there one day, the registrar, who's the clerk of the court, the administrative person there said, look, we've got no police transport. You can't refuse anyone bail any young people bail because there's no police officers to take them. And I said, well,
I'll do my best anyway. In the middle of the day, lo and behold, the young person was arrested and there was no way he was getting bail, that's for sure, and nobody wanted him to get bail and anyway, so I refused him bail. And then I got on the plane to fly back, and it was like an eight seven seedar and I was on one side, and sitting right next to me was him, handcuffed to the handhold there and looking pretty terrified. Anyway, we acknowledged each other.
I should say as a prelude, Brewarrener has the oldest man made structure in the world, which is the fish traps, thirty thousand years old, and you can really only fathom them from the air, this intricate pattern of stonework that traps the river when it floods, and then people would have fish for years, sometimes decades between floods by trapping the fishing these dams. So that's about ten times older
than the Pyramids. In any event, So the plane goes to take off and I could see he was shaking, and I said to him have you ever been on a plane before? He said, I've never been out of Brewarna before. And anyway, so we then taxied around and started to take off, and as we started to take off, he started gagging. The police officer sitting behind him couldn't do much, so I grabbed my sick bag, and I was holding the sick bag and not really liking bodily
fluids too much. I just looked out the window and he's vomiting in the bag, and I'm looking out at the fish traps as we're taking off, and I just think that freeze frame of me. It just sums up everything that's wrong with the criminal justice system and the culture that we're ignoring of these of these ancient people with ancient wisdom and connection to land, and there we are taking him away from his community and there he
is vomiting and scared and the police and me. I mean, just the whole picture is just one of sadness.
Really. Yeah. When I heard that, I could just imagine that and really in a world that he could not understand too in a plane, first time in the plane, and it is just terrified, and.
I mean, now we have language for this. This was you know, almost thirty years ago. Now we have language for this, which is things like fas D. I mean, this was a young man who did not understand the consequences of his actions. I mean, I think all of us with children know that many children still don't know the consequences of their actions. But this is a really fundamental problem. And you know, now one would hope we would be treating this younger rather than just locking them up.
Yeah, I think those type of improvements and it's not easy. We're seeing here going it's not waving a wand and the world will be fixed. We might take a break at this point. When we come back, I'll talk more about your role as a magistrate because twenty one years, I'm sure you've seen a lot talk about the impact of drugs and in particular ice, when you've seen ice
come in. I saw that in the latter part of my police career, the type of impact, but that sort of changed the dynamics for what you were dealing with in the courts. I think you've had dealings with sovereign citizens there. That's always an interesting chat. On my catch killers have upset a couple of sovereign citizens on things that we've said from people that were impacted by sovereign citizens.
I'd also like to take a dive into your thoughts on artificial intelligence AI and how that's going to impact on law down down the track, because I think that's an interesting area to go to. And I do want to speak to you about the reason as a magistrate, and we talk about a lonely job and a risky job. There was a period in time for one particular person where you were had to move out of your home and put in a secure location because of the threats
made against you. So whole range of things to talk about.
Have we only got another How are we going to possibly do that?
We could extend it. I'm sure we we'll manage our best. I'm sure we'll come and go Okay, great, Thanks, cheers,