Without fear or favour

What happens when the law is inconsistent with a magistrates personal convictions?

In northern NSW, Lismore Local Court Magistrate David Heilpern has just retired at the age of 58. In a candid conversation about his working life, its challenges and stresses, he also outlines his misgivings about the NSW drug driving laws which played a big role in his decision to step down.


Over 21 years he’s had death threats, he’s been traumatised by child sex abuse cases, he’s been on edge as ice-affected defendants violently erupted at his decisions. But when Magistrate David Heilpern would drive home from his Lismore court, he’d think about the people whose licences he’d taken away for drug driving — sometimes as many as 30 in a day. “I just thought the laws were so grossly unfair that I didn’t feel that I could continue to apply them,” Mr Heilpern says. “You’ve got to live with yourself in these jobs and if the application of a law is so grossly unfair then you’ve got to ask yourself: ‘Well can I keep doing the job?”

It’s the main reason he’s now stepping down. He could continue to serve until he’s 75. But the 58-year-old is done. “There are other reasons … while I’m still young enough, I wanted to do something else,” he tells ABC RN’s Law Report. “But that really started playing on my mind — in good conscience, could I continue to be taking people’s licences off them in those circumstances?” Under NSW laws people who are caught drink driving or driving with drugs in their system lose their licence for at least three months on a first offence. Subsequent offences start at six months. But Mr Heilpern says with drugs such as cannabis there’s not such a clear link between a positive test and adverse driving, given minute levels of the drug can be detected. “An enormous number, the vast majority of people who are brought before the courts on this charge, are not affected [by the drug],” he says. “It’s a historical or relatively benign impact on their driving ability, days, or even weeks after their use.”

Mr Heilpern says he doesn’t see evidence the laws are working. “When they introduced random breath testing, the road toll decreased massively. When they introduced seatbelt laws, there was a reduction in the road toll,” he says. “I have seen nothing to show that there is any reduction in the road toll as a result of the thousands and thousands of people who are appearing before courts for historic use of cannabis.” What he does see is the impact it has on people’s lives — especially in regional areas like Northern NSW where he works. At one stage the number of drug driving convictions in the region was five times the state average. “People would lose their licence, therefore they would lose their job. Therefore, they could well lose their house. Their relationships were affected. People became very much more isolated,” Mr Heilpern explains. “Every week, I would have people in tears in court saying, ‘Please don’t take my licence from me. I need it, I’m a single mum, I’ve got kids’ or ‘I live out of town and I work in town’. These consequences are really serious.”

NSW’s transport department says 74 drivers who were involved in fatal crashes last year had an illicit drug (THC, speed, ice, ecstasy or cocaine) in their system. Transport for NSW Deputy Secretary Tara McCarthy says driving after taking illegal drugs is extremely dangerous because your need good judgement and sharp concentration. “Any member of the community who has used illegal drugs is advised to be conservative when making the decision to resume driving,” she says. “[Mobile drug testing] is designed to deter drivers who have recently used illicit drugs from taking the risk of driving.”

Some of the drug driving cases that came through Mr Heilpern’s court made headlines, after he found the defendants not guilty because of their “honest and reasonable mistake of fact”. One driver had been told by a police officer that cannabis would be out of his system in a week. The next time he smoked he waited nine days before driving, but when police pulled him over, the test detected the cannabis in his system. In another case a man tested positive a couple of days after smoking marijuana. He had checked the NSW Government’s Centre for Road Safety website, which at the time said cannabis could be detected “up to 12 hours after use”. At the time Mr Heilpern described the advice as “nothing more than a cruel underestimation that gives people specious information, lulls them into a false sense of security, and leads to greater levels of detection, criminalisation and loss of licence”. Mr Heilpern says while his personal views are that the cannabis laws need to change, they always took second place to his oath. “We take an oath to uphold the laws and usages of the State of New South Wales without fear or favour, affection or ill … and I took that oath seriously,” he says. “My job was not to make up the law but to apply the law.”

Listen to the full interview here:

That job brings with it several challenges. There’s the “punishing” workload — when you’re the only magistrate in town you’re the coroner, the children’s court judge, and you deal with civil and criminal cases. “Someone once described it as putting your mouth over a fire hydrant. That’s what it feels like on some days. It’s the ultimate, in many ways, sausage factory law,” Mr Heilpern says. Then there were the threats. And the bomb planted outside his court after refusing someone contact with their child in a family law matter. Mr Heilpern says there are currently three people in custody for threatening him and other judicial officers. “When I was magistrate in Dubbo we had ‘KKK’ spray-painted on our garage door at home, threats to myself and my family. At one stage we moved to a motel.” He says unfortunately it’s not uncommon. “There’s probably not many magistrates or judges that have not had death threats or threats for their own personal safety over the years.” When the ice epidemic hit his region it also brought unprecedented violence into the courtroom. “We had people literally just going crazy and violent in the courtroom,” Mr Heilpern says. It got so bad a new “unescapable” dock had to be installed.

This came at a time when Mr Heilpern was already “mentally fragile”. Years earlier more than a dozen child pornography cases had come through his court in just a couple of months. At the time magistrates were required to look at all the images in a case. “Sometimes you’re looking at, and assessing the seriousness of, literally tens of thousands of images and videos. It’s enormously distressing,” he says. He stopped sleeping. When he did, the images he’d seen would fill his nightmares. He would thrash in his sleep, and wake sweating and panicked. “It really led to a significant vicarious trauma reaction … hyper vigilance, not sleeping, worrying and anxiety — an inability to clear my head of the images of innocent children, babies being abused.” He sought counselling from a psychologist who specialised in trauma, and for a while other magistrates took on some of his more difficult cases. For 10 years things improved. Then came a child sexual assault case that a sentencing judge would later describe as the “worst of the worst”. “The main perpetrator in that case got 48 years in jail. So you can imagine what the evidence against this against this man was,” Mr Heilpern says. “I dealt with the AVOs and the committal hearing which required hearing witnesses and dealing with the brief of evidence. And the evidence was indeed horrific.”

He again found himself getting teary; worrying about “unworrisome things”. “[I] found it very hard to make hard decisions about bail and sentencing and things like that.” The horror came at time of joy. He became a grandfather. But that too could trigger his darker thoughts. “I tended to imagine, ‘What if that was done to somebody that I knew?’ and how horrible it was. I think that added to the impact.” It was then the spate of violent outbursts in his court started. In the same period, two juveniles he bailed committed a rape. A friend died in a freak accident. “All of that added up to a period of real mental fragility,” he says. In court, making decisions became physically painful — his head hurt. At night he would wake screaming. After months of bleakness, and some “stubbornness”, he wrote to the Deputy Chief Magistrate to let her know he was struggling. Even though she was a friend, he says it was the hardest letter he ever wrote. He again took time off, sought help, and recovered his resilience.

YOUTUBE: David Heilpern talks about mental health ahead of a lecture for the Tristan Jepson Memorial Foundation.

During this time he found solace in his Buddhism. “I did some lengthy retreats with trusted teachers and with a lot of meditation, and that really helped,” he says. They also helped him find what he says is a healthier state of mind, helped him to find the difference between empathy and compassion. He explains it like this. Empathy would be putting yourself in the shoes of a child giving evidence in a sexual assault case, feeling their pain. Compassion is wanting their suffering to cease. “When you’re dealing with case after case where there’s victims suffering — either sexual or violent or even property crime — if you continually just put yourself in their shoes and really feel their pain, for me at least, that was a recipe for real mental affliction,” Mr Heilpern says. “On the other hand, if you simply step back a bit and say, ‘Well, you know, I really want this person not to be suffering’, there’s a subtle but important difference for the decision maker or for the listener … it’s far safer. “That automatically triggered a much healthier and more professional and a bit distant state of mind, and enabled me to continue doing my job.”

While he’s stepping down from the bench, David Heilpern isn’t planning to slow down. Instead he’s planning to go back to his roots, back to his passions. He wants to do not-for-profit legal work, help environmental activists, and to speak out on drug law reform. A couple of weeks ago, for the first time since becoming a magistrate, he was able to attend a rally against black deaths in custody. “[As a magistrate] you lose the ability to be a political animal, for good reason, you put that in the back pocket,” he says. “But my back pocket’s been burning.”

On a mission

David Heilpern has been fiercely campaigning for the overhaul of the whole roadside drug testing regime. The first change Heilpern is lobbying for is that patients who have a legitimate medicinal cannabis prescription and are subsequently charged with drug driving, should be able to use that fact as a defence against any conviction. Currently, there’s an ever-growing number of people being prescribed medicinal cannabis in this state and they can be charged with driving with its presence in their system, despite taking it for lawful reasons and not being impaired whilst driving.

He has recently put out a call to those in the community holding a legal medicinal cannabis prescription and have also been convicted of drug driving to come forward and speak to him about their experience to aid in bringing about change to prevent this from happening again. Sydney Criminal Lawyers spoke to former Magistrate Heilpern about the medicinal cannabis drug driving defence, why he advocates for this being the first of a number of reforms, and how NSW authorities are sitting on their hands when it comes to these unfair laws.

If you have been convicted of cannabis driving and you have a medicinal cannabis prescription, Mr Heilpern would like to speak to you. You can contact him via messenger on his Facebook page, or through the legal firm Barefoot Law at Mullumbimby, where he is Associate. The email is connect@barefootlaw.net.au