Retired Lismore magistrate David Heilpern, who has returned to work as a solicitor.
Retired Lismore magistrate David Heilpern, who has returned to work as a solicitor.

Former Lismore magistrate doesn't always agree with the law

THE legal profession runs in David Heilpern's blood, but that doesn't mean he always agrees with the law.

After 21 years on the bench, the former Lismore magistrate has stepped down from judicial life.

Mr Heilpern is now working for Byron Shire firm Barefoot Law, founded by its principal Mark Swivel two years ago. His departure from the judiciary means he can to shed light on aspects of the criminal justice system he'd increasingly taken issue with.

"My dad was a lawyer and my uncle was a lawyer," he said.

"Both of them became judicial officers and my dad told me I could do anything except law. So I think that's how it happened."

Reading Harper Lee's iconic novel To Kill a Mockingbird in high school showed him "law, applied well, could really change things".

Many who rise to a judicial role will remain there until the end of their working lives. A few things contributed to Mr Heilpern's decision to step away from the role and renew his practising certificate.

In recent years a series of cases including a "deeply disturbing" child sex abuse matter took their toll.

"I granted bail to some young people who then committed a horrendous rape," Mr Heilpern said.

"I refused bail to somebody who then got shot dead within two hours.

"And to top it off there was the drug-driving laws which were leading to (many) people a week before my court, losing their licence in circumstances where I just thought it was completely unfair."

Last July, he found Robert Collier, 34, not guilty of driving with an illicit drug present in his system.

This offence, which arises from minuscule amounts of a drug being detected in a driver's system, is distinct from that of driving under the influence but carries mandatory minimum licence disqualification periods.

Mr Collier's lawyer raised a successful "mistake of fact" defence; relying on the NSW Centre for Road Safety advice that cannabis could remain in your system for "up to 24 hours". Mr Collier waited much longer, but still returned a positive test. At the hearing, Mr Heilpern said the state's advice was "a cruel underestimation".

Mr Heilpern, who was invited to speak at the recent Black Lives Matter protest in Byron Bay, has for decades witnessed the disproportionate representation of Aboriginal people in the criminal justice system.

"You can't be working in the criminal justice system without seeing the mass over-representation as a stain on the legitimacy of our system," he said.

"The criminal justice system feels to me like it's just putting a bandaid on a weeping wound."

He said initiatives such as circle sentencing had been helpful, but there was a long way to go. There have been 432 Aboriginal deaths in custody since the royal commission into that issue handed down its recommendations in 1991.

As he plans to push for change in areas where it's lacking, Mr Heilpern said if he has a legacy, it should be that he was "able to be open about the mental health challenges of doing the job".


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