Speaker 1: The public has had a long held fascination with detectives.
Speaker 1: Detective sy aside of life, the average person is never
Speaker 1: exposed to. I spent thirty four years as a cop.
Speaker 1: For twenty five of those years I was catching killers.
Speaker 1: That's what I did for a living. I was a
Speaker 1: homicide detective. I'm no longer just interviewing bad guys. Instead,
Speaker 1: I'm taking the public into the world in which I operated.
Speaker 1: The guests I talk to each week have amazing stories
Speaker 1: from all sides of the law. The interviews are raw
Speaker 1: and honest, just like the people I talk to. Some
Speaker 1: of the content and language might be confronting. That's because
Speaker 1: no one who comes in the contact with crime is
Speaker 1: left unchanged. Join me now as I take you into
Speaker 1: this world. Magistrates, by the nature of their work, are
Speaker 1: often criticized by the public for going soft on crime.
Speaker 1: And then you have, on the other hand, people they
Speaker 1: convict and sentence think they've been hard done by. It's
Speaker 1: a tough job burn a local court magistrate, but they
Speaker 1: play a crucial role in society today. We're fortunate to
Speaker 1: have retired magistrate David Helpern come on the podcast and
Speaker 1: have a fascinating discussion about the life of magistrate, including
Speaker 1: everything from the time he held a sick bag for
Speaker 1: a prisoner, face death threats, and he's dealings with sovereign
Speaker 1: citizens and why he became known as the fuck Magistrate.
Speaker 1: That's going to be interesting. If you have a preconceived
Speaker 1: idea about the person who sits in judgment of others,
Speaker 1: have a listen to what David has to say about
Speaker 1: the role. I think you'll be surprised and perhaps shocked
Speaker 1: about the person he is and his views on crime
Speaker 1: and punishment. It was a refreshing chat and one that
Speaker 1: opened my eyes up to the complexity of the role.
Speaker 1: David Hilpern, welcome to I Catch Killers.
Speaker 2: Thanks so much.
Speaker 1: Well, look, old habits die hard. So if I start
Speaker 1: referring to you as your honor, you know that I've
Speaker 1: got flashbacks to times in the witness box where I've
Speaker 1: been dissected by very clever legal people. So if I
Speaker 1: fall into that trap, forgive me.
Speaker 2: Well. When you and I started in court, I think
Speaker 2: it was your worship.
Speaker 1: Yeah that changed two thousand and four, I think around
Speaker 1: that time, was it.
Speaker 2: Yeah, that's right. It stopped worshiping me and started honoring me.
Speaker 1: So then either way, I was trying to give you respect,
Speaker 1: your honor, your worship. Sir, you were twenty one years
Speaker 1: as a magistrate. Did you come accustomed to people addressing
Speaker 1: you in that manner, your honor, your worship, that type
Speaker 1: of thing.
Speaker 2: Never. It always felt completely bizarre. Really, I kept looking
Speaker 2: around wondering who they were talking to. It's such an
Speaker 2: artificial environment, really, the court, where you refer to people
Speaker 2: not by their name but solely by their title and
Speaker 2: of course your worship and your honor. They're meant to
Speaker 2: instantly give authority. But I sort of always felt that
Speaker 2: authority should be earned and respect should be earned, rather
Speaker 2: than just given by a title.
Speaker 1: Yeah, that's an interesting way of looking at in my
Speaker 1: research that I didn't in preparation for it. I saw
Speaker 1: it was either in an article or an interview you did.
Speaker 1: You had some funny situations with the way that you've
Speaker 1: been addressed, and with someone in court trying obviously trying
Speaker 1: to do their best, but referred to you as your majesty.
Speaker 2: Your majesty, your most worshipfulness. Yeah, you really got the
Speaker 2: full gamut. Your majesty was delivered by a by a
Speaker 2: fellow who'd only just immigrated from India and he was
Speaker 2: bending over backwards to show respect, so I just let
Speaker 2: it go.
Speaker 1: It would have been a little bit embarrassing if you
Speaker 1: pull him upon that.
Speaker 2: Absolutely. I also got called your holiness once as well,
Speaker 2: when I thought being elevated to the pope was really
Speaker 2: something else.
Speaker 1: Well, I'm glad you didn't buy into your own own
Speaker 1: fame and the adulation that you had from people in
Speaker 1: your courts. But it's interesting the way you see people
Speaker 1: come in the courts, because it is a strange environment
Speaker 1: for people, isn't it.
Speaker 2: It really is. And you know I always I mean
Speaker 2: you and I discussed this in preparation that by the
Speaker 2: time you've been a police officer for five or ten years,
Speaker 2: going to court just becomes natural and you're pretty relaxed
Speaker 2: about it. Yeah, Whereas for people who've never been there before,
Speaker 2: particularly young people, Aboriginal people, people from different backgrounds, it's
Speaker 2: quite a scary environment for them. And I think one
Speaker 2: of the real functions of good lawyers, good prosecutors, and
Speaker 2: good judicial officers is to make people feel relaxed and
Speaker 2: not too uptight.
Speaker 1: Yeah. Well, I think creating that relaxed atmosphere lends to
Speaker 1: a better outcome as well, because I've seen people that
Speaker 1: have literally choked in the witness box. I know the
Speaker 1: story or the information they wanted to provide, and that
Speaker 1: doesn't come out properly, and quite often it's because they're
Speaker 1: intimidated in a foreign type environment.
Speaker 2: Absolutely. I used to in training other magistrates. I used
Speaker 2: to say, you know, courts should be like hospitals. Horrible
Speaker 2: things do happen there, but everyone's doing their best in
Speaker 2: this case to get to the truth and to get
Speaker 2: to a just outcome.
Speaker 1: Yeah. No, it's important to create that. You talk about training.
Speaker 1: On occasions where I've been fortunate enough to speak to
Speaker 1: law students that are going to embark on a career
Speaker 1: in law, what I try to leave my talk with,
Speaker 1: or what I try to finish off with in giving
Speaker 1: words of wisdom in that environment is that don't lose
Speaker 1: touch with your humanity when you're practicing law. Like I'm
Speaker 1: speaking to people, I'm talking to them from a police
Speaker 1: point of view and things that I've seen and done.
Speaker 1: But the importance of maintaining your humanity. Would you agree
Speaker 1: in that concept?
Speaker 2: Yeah, for sure. And you know, I mean, I think
Speaker 2: it's part of really maintaining your sanity in these jobs,
Speaker 2: because if you lose your humanity, then where's your touchstone
Speaker 2: when things start going wrong? You know? I mean, I
Speaker 2: think most people join the police, most people join the
Speaker 2: legal profession because they care and they want to help
Speaker 2: other people. But if you lose your humanity, I think
Speaker 2: you can be making mistakes and errors of judgment that
Speaker 2: really impact on other people. I always tried to remind
Speaker 2: myself that I was just a human being trying to
Speaker 2: do my best in a difficult and very hot house environment.
Speaker 2: And if you start from that perspective, with a bit
Speaker 2: of humility as well as humanity, then I think justice
Speaker 2: is better served. And I mean, I'm sure we've all
Speaker 2: seen that in really good police officers too. They maintain
Speaker 2: their humanity, they realize that they're human and we're all
Speaker 2: just doing our best in a pretty difficult system.
Speaker 1: Yeah, I look, and I agree wholeheartedly what you've said there,
Speaker 1: But I've also seen people that lose their way because
Speaker 1: it's an adversarial system, and I see defense and prosecutors
Speaker 1: going at it like it's a game of sport, and
Speaker 1: I'm sitting in the court with the victim whose life's
Speaker 1: been turned upside down or even the person appearing before
Speaker 1: the court. And I think sometimes that can be disarming
Speaker 1: to people involved in it, that they look and go,
Speaker 1: what's going on here? We're talking about my life because
Speaker 1: it is high stakes in the court.
Speaker 2: System, absolutely, and there's a difference between an adversarial system
Speaker 2: which we have and a competitive system which we shouldn't have.
Speaker 2: It's not actually about winning or losing. It's certainly about
Speaker 2: ensuring that your case is presented the best it can
Speaker 2: be from a prosecution or a defense point of view
Speaker 2: and from the judicial office point of view, that everything
Speaker 2: is explained and that people understand what's going on. I
Speaker 2: mean the number of times I'd sentence people and go
Speaker 2: into language that's a bit two technical or jargon and
Speaker 2: they wouldn't have a clue what had actually happened. That's
Speaker 2: got to be avoided. And also that over competitiveness. I
Speaker 2: mean I had lawyers and prosecutors almost come to blows
Speaker 2: yeah at the bar table, and you know, you feel
Speaker 2: like saying, children, you know, we're not actually getting to
Speaker 2: any point of having an evidence rightly if you're presented
Speaker 2: so that I can make a decision when you're going
Speaker 2: at it like that.
Speaker 1: The lost sight of what it's about. I'll do a
Speaker 1: segue because you mentioned language, and I think i'll bring
Speaker 1: this up. I was aware of the work that you
Speaker 1: were doing at various times in your career when you're
Speaker 1: a magistrate, and I was a police officer in homicide,
Speaker 1: so doing a lot of work around the state in
Speaker 1: different areas. But you did have a name. I'll let
Speaker 1: you explain it the fuck magistrate, do you want to explain?
Speaker 2: Explain that it's true and it's a bad chize still
Speaker 2: to this day, where with some pride, look, I think
Speaker 2: we'd all been aware of the trifector, but I honestly
Speaker 2: hadn't seen it that much in my career as a
Speaker 2: defense lawyer and occasionally doing prosecution matters. But when I
Speaker 2: went out to western New South Wales as a very
Speaker 2: young magistrate, I was sitting in towns like Burke In Brewarrina, Cobabo.
Speaker 2: Every second or third case was what they call a
Speaker 2: trifacta case where someone's arrested for offensive language and then
Speaker 2: they put up a bit of a stink and they're
Speaker 2: charged with hindu police or resist arrest and assault police,
Speaker 2: all because of language. And almost without exception, it was
Speaker 2: the word fuck, And I'd been brought up on Triple
Speaker 2: J and I'd watched movies and television and the word
Speaker 2: that Alvin Purple, and you know, it had started to
Speaker 2: be used really regularly. Yeah, people were getting arrested for it.
Speaker 2: And it's not as though they were being arrested for
Speaker 2: saying it in church. They were being arrested for saying
Speaker 2: it in the street. And I had a case where,
Speaker 2: or two cases really, one where a a bike that
Speaker 2: was suspected of being stolen was being taken by a
Speaker 2: police officer and the young Aboriginal man who took who
Speaker 2: it was being taken from, saying you're not fucking having it,
Speaker 2: and they said you're under arrest, and that was it.
Speaker 2: It was on and the trifector in the second case
Speaker 2: where a woman down at the South Coast was swearing
Speaker 2: in a domestic violence situation where she was the victim
Speaker 2: and the police had attended the premises and she had
Speaker 2: lost lost control really and certainly was swearing at everybody.
Speaker 2: But in both those cases, it seemed to me to
Speaker 2: be ridiculous to arrest people that is deprived of their
Speaker 2: liberty for an offense that carries a maximum penalty of
Speaker 2: a fine. And so I just heard argument from a
Speaker 2: barrister by the name of Mark Dennis, who is now
Speaker 2: an sc and he said, well, I'll put it to you.
Speaker 2: The words not offensive anymore. It's lost its punch, and
Speaker 2: really this is just an unfortunate use of police powers
Speaker 2: to deal with another problem, which is disrespect, or another
Speaker 2: problem which is not being able to control yourself in
Speaker 2: times of stress. And I accepted that argument, and I
Speaker 2: found that the word was no longer offensive and dismissed
Speaker 2: charges against people and there was no appeal, but there
Speaker 2: was complaint. Some police didn't like it, and sixty Minutes
Speaker 2: did a big number on it, and the police commissioner
Speaker 2: came on sixty Minutes and said, well, you know, I
Speaker 2: think he's probably right. I've used that word myself. Yeah,
Speaker 2: that was the end of it.
Speaker 1: Really, like the law is set in precedents, and yeah,
Speaker 1: it goes back a long way, but it's got to
Speaker 1: be able to serve the community that it's operating for.
Speaker 1: And I think, congratulations on you taking that stance on that,
Speaker 1: because I thought it was a shortcut for policing. It
Speaker 1: sort of it fitted in early days in my policing.
Speaker 1: I think we could rest people for being intoxicated or vagrant,
Speaker 1: and that was just the excuse. Okay, I've got no
Speaker 1: real charge. I take this person off the street. And
Speaker 1: that's what you were talking about. And there was times
Speaker 1: when it was abused, and you say the big three
Speaker 1: like offensive behavior, right, you've said the word fuck. Now
Speaker 1: we're going to arrest you. When you resist, that's going
Speaker 1: to be resist police. And when you push this, that's
Speaker 1: assault police. And these people are fitting there. And I
Speaker 1: didn't like the culture of police and probably police that
Speaker 1: I didn't respect talking about Oh we'll give them the trifecta. Yeah,
Speaker 1: it was a horrible way, So congratulations on that. But
Speaker 1: I'm sure you the shock jock type situation. People were
Speaker 1: to push back and go, who is this soft magistrate?
Speaker 1: He's going soft on crime. The sky is going to
Speaker 1: fall if we allow people to do to swear.
Speaker 2: So, yeah, it's a funny thing because you know, you
Speaker 2: bring your own, your own culture, you bring your own
Speaker 2: humanity to the bench, which is something I think people
Speaker 2: don't realize. So that I think I was much tougher
Speaker 2: on domestic violence, much tougher on drink driving than many magistrates,
Speaker 2: but certainly much lighter when I thought that things have
Speaker 2: changed and the law doesn't just stay stable, it doesn't
Speaker 2: stay in one spot. And while words like that were
Speaker 2: certainly offensive twenty thirty forty years before I made that decision,
Speaker 2: things actually move on. And I think these days, you know,
Speaker 2: I'd hesitate to say it now, but the N word,
Speaker 2: when you refer to people who are colored, Yeah, I
Speaker 2: think that word is far more offensive than the word
Speaker 2: fuck is today.
Speaker 1: Well, you'd get the more reaction from someone if you
Speaker 1: said that. If you're throwing out the F word, No
Speaker 1: one's going to batten nyhii it if you said the
Speaker 1: other word, people would. I agree. And when you're looking
Speaker 1: at it, the definition of the actual crime is that
Speaker 1: you've offended people. I took offense to the fact. And
Speaker 1: I say this jokingly. I thought it was quite funny
Speaker 1: that there was an article written about it in your
Speaker 1: Stance and they reference was it chuk Fouler, the infamous
Speaker 1: corrupt detective in the Royal Commission?
Speaker 2: Every second word that came out.
Speaker 1: Yeah, where we all sat at home watching his tapes
Speaker 1: in his car or whatever, and he was using the
Speaker 1: word as a punctuation mark and yeah.
Speaker 2: Totally, totally, Well, I thought it was funny that someone
Speaker 2: said to me that his shorts were more offensive than
Speaker 2: his language.
Speaker 1: Bringing back there those images. We should move on from that. Yeah,
Speaker 1: I do recall where they had the camera. It wasn't
Speaker 1: a good good position. Tell us a little bit about
Speaker 1: your your background, where did you grow up and how
Speaker 1: did you find your way into law.
Speaker 2: Look, my dad was a lawyer, and my uncle, Howe
Speaker 2: was a lawyer and then a Supreme Court judge hol Spurling,
Speaker 2: and there was a lot of law talk around our
Speaker 2: kitchen table. My dad was very involved in civil liberties
Speaker 2: and in prisoner Action group, and he was chief of
Speaker 2: staff to Frank Walker, the then Attorney General when I
Speaker 2: was a child, so I got brought up in a
Speaker 2: hot house environment of law. I of course rejected that
Speaker 2: completely and wanted to be a vet because we grew
Speaker 2: up on a farm in Bathist and I thought that's it.
Speaker 2: But I missed out on the marks to be a
Speaker 2: vet just by a couple of marks. And in those days,
Speaker 2: whatever mark you got, that was it, and vet science
Speaker 2: was much higher. So law was my second choice, but
Speaker 2: I never regretted it. Really. As soon as I started
Speaker 2: at law school, I had some absolutely inspirational fellow students
Speaker 2: and inspirational teachers, and I loved it. I love it
Speaker 2: to this day. I find it's interesting and exciting and
Speaker 2: intellectually challenging and morally challenging the kinds of dilemmas that
Speaker 2: the law brings up. So my background was being brought
Speaker 2: up in that environment. But I went to Bathist High School,
Speaker 2: so I wasn't from a private school. And I did
Speaker 2: my law degree. I moved to Sydney to do law
Speaker 2: and I hated living in the city, so I moved
Speaker 2: back to Batson, did it externally and when I finished,
Speaker 2: by then I had a couple of kids, so it
Speaker 2: wasn't a question of to finish off. As most people
Speaker 2: would be aware, You've got to do another course, which
Speaker 2: is called the College of Law or the legal workshop,
Speaker 2: and to do that I got off at a scholarship
Speaker 2: to do that in Canberra with A and U and
Speaker 2: the Australian Attorney General's Department. So I joined them, and
Speaker 2: then didn't like living in Canberra either, realized I was
Speaker 2: definitely a country boy, and got a job with a
Speaker 2: law firm Inkyogle, which and opened a branch office in
Speaker 2: Nimben because I loved Nimben. I thought it was the
Speaker 2: center of the universe.
Speaker 1: Okay, I've spent a bit of time at Nimban myself.
Speaker 1: Were you the radical, going to change the world type
Speaker 1: UNI student and taking on the world? Was that your thing?
Speaker 2: Yes, I think you could say that. I was involved
Speaker 2: in protests. I don't know if you remember a case,
Speaker 2: but there was a case called Island Roberts where she'd
Speaker 2: killed her husband, Bruce, and she'd got life imprisonment, and
Speaker 2: I think my first set of demonstrations were to do
Speaker 2: with releasing her from custody when really she was just
Speaker 2: trying to defend herself against domestic vinds. It led to
Speaker 2: the change in law for provocation as a defense, and
Speaker 2: you know, at that time the Tazzy Dams marches were happening,
Speaker 2: and so yeah, I thought it was a great chance
Speaker 2: to enjoy myself, meet interesting people, particularly the opposite sex,
Speaker 2: and get involved in politics.
Speaker 1: Okay, so I'm getting a picture of the type of
Speaker 1: person you were, and recreational drugs in that environment. I
Speaker 1: think statute of limitations a pass that and I haven't
Speaker 1: cautioned you, so I think we can speak openly about that.
Speaker 2: Indeed, and I've been open about that that. I mean,
Speaker 2: I should say that in those days, it was very
Speaker 2: unusual for people to use any drugs other things, just cannabis. Yeah,
Speaker 2: and I certainly inhaled and exhaled, fortunately.
Speaker 1: Not to President Clinton.
Speaker 2: And I really enjoyed it. I thought cannabis was a
Speaker 2: terrific drug for me. I didn't like drinking. I didn't
Speaker 2: like being around people who were drinking that much either.
Speaker 2: It was pretty agro, whereas smoking was very mellow, and
Speaker 2: it helped me weirdly focus on my studies enormously. I mean,
Speaker 2: I did well with my studies. And I know that
Speaker 2: it's unpopular to say, but for some people it really
Speaker 2: helped slow me down.
Speaker 1: I think it's interesting with the drug situation, like when
Speaker 1: we're talking cannabis and that I know people that, yeah,
Speaker 1: that drug suits them at whatever it does. It balances
Speaker 1: out other people that if they touch alcohol, they're going
Speaker 1: to turn into a night there, you know, or other
Speaker 1: people can deal with alcohol. It's an individual thing. The
Speaker 1: effect that has on you living that type of lifestyle.
Speaker 1: Do you think that served you well when you did
Speaker 1: eventually start practicing.
Speaker 2: Law, Yes, I think it did. I mean I joined
Speaker 2: a small firm that was, and I was doing criminal
Speaker 2: defense work, doing legal aid, doing aboriginal legal service work,
Speaker 2: and of course moving to the Far North Coast and
Speaker 2: having a branch office in Nimben. A significant proportion of
Speaker 2: my work was drug work, and no one was really
Speaker 2: specializing in that much. But I enjoyed that kind of work.
Speaker 2: I enjoyed the clients. I enjoyed the repartee with some
Speaker 2: of the elements of the drug squad. You know, we
Speaker 2: loved to hate each other and teased each other on
Speaker 2: the winds and losses that we had. Probably far too competitive,
Speaker 2: but I enjoyed the work environment, and I enjoyed that
Speaker 2: doing drug work, and as you can imagine, there was
Speaker 2: plenty of it. There was a lot of people being
Speaker 2: arrested for cannabis plants. It was at the days of
Speaker 2: the helicopter raids where crops were routinely being seized and
Speaker 2: burnt and people arrested. There was a lot of people
Speaker 2: charged just with simple possessions. And yeah, it's sort of
Speaker 2: motivated me to speak up and speak out about why
Speaker 2: the law needed to be changed. And I guess I
Speaker 2: felt completely hypocritical as well, because I was a person
Speaker 2: who not daily, yeah, in fact, not even weekly, but
Speaker 2: if I went out, I really liked and enjoyed to
Speaker 2: have a smoke.
Speaker 1: Yeah, yeah, I can understand the conflict there, but that
Speaker 1: was the environment. Like Nimben. I spent some time up there,
Speaker 1: not working, but also time up there when I was working,
Speaker 1: And it was quite funny driving up there, even an
Speaker 1: unmarked police car. You'd pull up to a commune and
Speaker 1: the whole commune and disappear into the bushes, calling out
Speaker 1: government car, government car, just disappearing. And I just a
Speaker 1: side note, I had a conversation with a family up there,
Speaker 1: and they were most distraught that they raise their children
Speaker 1: in very much the nimb and lifestyle, and their children
Speaker 1: had rebelled, and they were disappointed that they're trying to
Speaker 1: get careers and they're getting jobs and different things like that.
Speaker 2: And it's an absolute tragedy when that happens.
Speaker 1: Yeah, they raise them with all the right veys.
Speaker 2: When you call someone poss rainbow and they still become
Speaker 2: an accountant, you've definitely failed.
Speaker 1: Defense. Did you ever consider prosecution? Did you ever go
Speaker 1: down that path?
Speaker 2: I did do some prosecuting. I did one of our clients,
Speaker 2: or several of our clients were local councils and I
Speaker 2: did some prosecution work there, and there is no doubt
Speaker 2: that the best training to be a defense lawyer is
Speaker 2: to do some prosecution and vice versa. A maide of
Speaker 2: mine who's now the Minister for Local Government, Ron Honig,
Speaker 2: was a public defender for many years and then he
Speaker 2: did a stint in the Crown prosecutions and he said
Speaker 2: to me, I learned more in that six months about
Speaker 2: being a good defense lawyer, in fact, just being a
Speaker 2: good lawyer. Yeah. By swapping the side of the fence,
Speaker 2: and I think doing the prosecution work for local councils
Speaker 2: for people who had built dangerous structures or had committed
Speaker 2: other environmental type offenses. That was really powerful training ground
Speaker 2: and also showed me that things weren't quite as black
Speaker 2: and white as as I thought they were. It also
Speaker 2: showed me that a good prosecutor and a good defense
Speaker 2: lawyer together can really get to the truth of a situation,
Speaker 2: normally get an a greed set of facts, normally getting
Speaker 2: agreed plea, and there's no need for all the difficulties.
Speaker 2: I did find really quickly that I did not like
Speaker 2: defending sexual assault cases. I found them grueling, and I
Speaker 2: never felt comfortable in the role of cross examining victims
Speaker 2: of sexual assault.
Speaker 1: Yeah, I would imagine that I know a lot of
Speaker 1: people in the legal sector, and that's pretty much across
Speaker 1: the board. That's harder the fences, and sometimes it crosses
Speaker 1: that line. That must be hard doing that, jumping between
Speaker 1: the two sides. And you know, as you said, coming
Speaker 1: to a situation where both parties are amenable, having agreed
Speaker 1: set of the facts and resolving the situation fairly. That's
Speaker 1: the ultimate goal, isn't it that you want to achieve
Speaker 1: in that environment?
Speaker 2: Absolutely, because it means that everyone knows where they're at.
Speaker 2: And it also means, particularly in violent crimes, that people
Speaker 2: don't have to give evidence. And I think we would
Speaker 2: all agree that the process as a victim of crime
Speaker 2: of giving evidence can often be well, it's often described
Speaker 2: as being worse than worse than the experience itself, you know,
Speaker 2: and I think having to relive it and all the
Speaker 2: difficulties associated with that. And the other thing is there's
Speaker 2: a good rule in law which is if you plead guilty,
Speaker 2: you get a discount. Yeah, and that it's not as
Speaker 2: big a discount as people realize, but it's a real
Speaker 2: currot as opposed to to a stick. From a defense
Speaker 2: perspective and from a prosecutorial perspective.
Speaker 1: Yeah, I see the benefits of that. Then I never
Speaker 1: got bogged down. I know people have really strong views
Speaker 1: on sentencing and all that, and I personally don't like
Speaker 1: in the whole range of offenses where they talk about
Speaker 1: mandatory sentencing on offenses. One thing I've learned watching people
Speaker 1: go through the courts is that each case is unique
Speaker 1: in its own own way, and to put a blanket
Speaker 1: a mandatory sentence for if you're convicted of this offense
Speaker 1: doesn't always fit the crime.
Speaker 2: I totally agree. I think there's a problem with our
Speaker 2: sentencing system, and that is that the prosecution don't appeal enough.
Speaker 2: It's very hard to get the DPP to appeal a sentence,
Speaker 2: particularly from the local court, and what that means is
Speaker 2: that the whole appeal system is skewed, so only defense
Speaker 2: lawyers appeal and then magistrates are sitting there getting their
Speaker 2: sentences lessened more often than not. And in the whole
Speaker 2: time I was a magistrate, I never had one sentence increased.
Speaker 2: In fact, I never had a New South Wales DPP
Speaker 2: appeal against a sentence. Now that's just wrong because I'm
Speaker 2: sure I was too lenient on occasions. I mean, you
Speaker 2: try not to be and you try and err on
Speaker 2: the side of right, but the system is skewed and
Speaker 2: it shouldn't be and we wouldn't need mandatory sentencing if
Speaker 2: we had a decent and proper appeal system.
Speaker 1: Yeah, it's interesting the appeal system. Out of all the
Speaker 1: aspects of court, I found the appeal system. I could
Speaker 1: sit in court being involved in appeals and it just
Speaker 1: seems so complex, the appeal system. Quite often I'd sit
Speaker 1: there and I think I've got reasonable intelligence in trying
Speaker 1: to understand the process of courts. But I've got to
Speaker 1: say sometimes I've sat in court, especially appeals at the
Speaker 1: High Court, and I'm sitting there, going, what are we
Speaker 1: talking about here? It's very complex totally.
Speaker 2: And then one of the great things about being magistrates
Speaker 2: is you never had to deal with anybody else's appeals
Speaker 2: because you were right at the bottom of the barrel.
Speaker 2: You were at a court of first instance, and yeah,
Speaker 2: you know, it was just it was just you were
Speaker 2: the first one to have a go and if people
Speaker 2: had a different view, well that That was fine by me.
Speaker 2: I never got upset by appeals, and you're right, I
Speaker 2: often didn't understand them either.
Speaker 1: Yeah, just on this nuanced point of law that would
Speaker 1: just go over my head sometimes. How long were you
Speaker 1: practicing law before you became a magistrate? How long were
Speaker 1: you doing that for?
Speaker 2: I was practicing for about ten years before I became
Speaker 2: a magistrate. But during that time also I got invited
Speaker 2: along with another local lawyer, to help establish Southern Cross
Speaker 2: University Law School, and so I was a part time
Speaker 2: lawyer for the last four or five years as we
Speaker 2: set up that law school and I became an academic
Speaker 2: at it. It quickly was really apparent to local practitioners
Speaker 2: in those days. If you wanted to practice in New
Speaker 2: South Wales, you had to do your degree in New
Speaker 2: South Wales and you had to get admitted in New
Speaker 2: South Wales. So all the lawyers on the far North
Speaker 2: coast would have to Anyone who wanted to be a
Speaker 2: lawyer from a rural or regional area in New South
Speaker 2: Wales had to go to Sydney, and that was just
Speaker 2: so it was really difficult for many people. It was
Speaker 2: a barrier. So we thought, well, let's start the first
Speaker 2: non metropolitan law school in Australia which.
Speaker 1: We did that you've spent four years. There was it
Speaker 1: ninety eight that you was at research that you did
Speaker 1: in prisons and wrote a book about Can we talk
Speaker 1: about that before we talk about your role as the magistrate.
Speaker 1: That was before you became a magistrate.
Speaker 2: It was I was representing a young man from the
Speaker 2: Gold Coast who'd come down to Tunneble Falls community and
Speaker 2: conducted a raid. Now that sounds like a police action,
Speaker 2: but in fact hippies were pretty vulnerable to people coming
Speaker 2: in garments and stealing their crops and he had been
Speaker 2: involved in that. He was nineteen and going on fifteen.
Speaker 2: And when his bail was refused, I said too. It
Speaker 2: was in the district court. I said, you know, this
Speaker 2: young man is likely to get sexually assaulted in prison
Speaker 2: and that's why you should give him bail. And the
Speaker 2: judge said to me, well, where's the proof of that,
Speaker 2: where's the proof that anyone that that happens? And Corrective
Speaker 2: Services minister had said, well, rape is inevitable in prison
Speaker 2: and I quoted that. The judge wasn't too impressed with that,
Speaker 2: and I thought, give me a chance. I'll go and
Speaker 2: get some I'll find out there must be research on it.
Speaker 2: And I found out that with in Australia there was none,
Speaker 2: absolutely no research. So that case that young man was
Speaker 2: bail refused and after he was sexually assaulted in prison
Speaker 2: and he killed himself, that really motivated me to start
Speaker 2: researching this issue, and so I got some funding. And
Speaker 2: I suppose also I was motivated by the fact that
Speaker 2: I was an academic who didn't have a higher degree,
Speaker 2: and that was a bit of a no no. So
Speaker 2: I decided to do a high degree in research, interviewing
Speaker 2: three hundred prisoners aged eighteen to twenty five as to
Speaker 2: whether they'd been assaulted or sexually assaulted while they're in prison,
Speaker 2: and unsurprisingly, about one in three had been sexually assaulted
Speaker 2: while they're in prison. Sometimes that took the form of
Speaker 2: what we would call rape, but often it was a
Speaker 2: protective pairing. In other words, they would pair with someone
Speaker 2: who was bigger, tougher than and would protect them in
Speaker 2: exchange for sexual favors. So that research was published and
Speaker 2: caused quite a stir. It caused a few things, the
Speaker 2: segregation of eighteen to twenty five year old prisoners with
Speaker 2: each other, rather than older prisoners, which was I think
Speaker 2: a start the introduction of condoms into prisons which exists
Speaker 2: to this day, and because the HIV AIDS was huge
Speaker 2: at that time, and also a recognition that technology has
Speaker 2: huge and obviously an ongoing role to play in keeping
Speaker 2: prisoners safe. So I then published that research as a
Speaker 2: book and some fun touring with that in the United
Speaker 2: States in particular where it became Unfortunately, I donated the
Speaker 2: royalties very early on. I wish I hadn't.
Speaker 1: Just didn't think clearly enough on it.
Speaker 2: I just thought it wouldn't sell many.
Speaker 1: But the book Fear or Favor Sexual Assault of Young Persons.
Speaker 1: I'm reading through the parts of it, and yeah, the
Speaker 1: statistics that came out were quite frightening. And when you
Speaker 1: talk one in three and even as a police officer,
Speaker 1: and very much as a police officer, you had empathy
Speaker 1: on what you were doing, but you didn't really consider
Speaker 1: what happens when you send people to prison. But there
Speaker 1: have been many times when I locked people up and
Speaker 1: I know what happens in prison and the type of
Speaker 1: people in prison, and you think what's going to happen
Speaker 1: to them doesn't really fit the crime. They've committed and
Speaker 1: it was almost you look. I looked with pity and
Speaker 1: thinking this is terrible. I know what's going to happen
Speaker 1: to this person. They will not be able to look
Speaker 1: after themselves in prison, so they'll either have to pair
Speaker 1: up with someone for protection or they will be attacked
Speaker 1: in the full on sexual assault. And the impact that
Speaker 1: has on people, As you said by your client, that
Speaker 1: a result in him taking his own life.
Speaker 2: And let's face people who go into prison and are
Speaker 2: victimized are not likely to have great self restraint learn
Speaker 2: the kind of skills we would hope they learned not
Speaker 2: to re offend in that kind of environment. Of course,
Speaker 2: it means they wouldn't want to go back, but as
Speaker 2: we all know, criminogenic behavior is partly willpower and partly circumstance.
Speaker 2: So I hope things have improved. I suspect they have.
Speaker 2: I think that there's many more avenues for complaint, a
Speaker 2: lot more protection, and the technology means that most areas
Speaker 2: of prisons are now covered by CCT.
Speaker 1: Well the technology, and I spent some time in prison
Speaker 1: of recent times doing a podcast series, and I was
Speaker 1: fascinated by the technology that's available now that it might
Speaker 1: be the offense or an assault happened now, but they
Speaker 1: can look back at all the movements week prior to
Speaker 1: that and from all different angles, and yeah, it has
Speaker 1: to make it more difficult. But I've seen not so
Speaker 1: much when I was in the police because it wasn't
Speaker 1: the type of conversations that I would be having. But
Speaker 1: since I've been out of the police and people I've
Speaker 1: met doing this podcast the effect that that has on people.
Speaker 1: And there was a person sitting here in the studio,
Speaker 1: Russell Manster, who's sadly passed away, but talked about being
Speaker 1: sent to a prison as a seventeen year old and
Speaker 1: putting a cell with to sex offenders and just brutalized
Speaker 1: for days on end, and he came out angry and
Speaker 1: subsequently spent the next twenty years in and out of jail,
Speaker 1: and his whole life was dictated by this is never
Speaker 1: going to happen to me again, yep.
Speaker 2: And I think that undertaking research like that was important
Speaker 2: but also showed me that there's more ways to change
Speaker 2: things protest, and that the role of academia in society
Speaker 2: is actually really important when it picks up on it
Speaker 2: and is able to highlight you know, not things that
Speaker 2: are obscure, but things that are fundamental. I mean, any
Speaker 2: of us could go to jail. That's the reality. Me
Speaker 2: for my price sins, you for your price sins. We
Speaker 2: could all end up in jail, and if we do,
Speaker 2: we should be safe.
Speaker 1: Yeah, that's not part of the punishment. And you're quite
Speaker 1: right with the academic study, the research and all the
Speaker 1: information that can back it up that when this next
Speaker 1: young lawyer like you were at the time saying, well,
Speaker 1: I'm concerned about what will happen to my client, and here,
Speaker 1: in fact, there is a study that shows yeah, it
Speaker 1: does carry weight. I think I'd like to think and
Speaker 1: a shout out to correct New Services and just a
Speaker 1: bit of a bit of a stay. But I went
Speaker 1: to and you practiced in Wellington, or you've presided in
Speaker 1: Wellington the mcquarie Correctional Center, where they're approaching prisons a
Speaker 1: completely different way, and a lot of that is that
Speaker 1: the prisoners feel safe. And I'm not just talking about
Speaker 1: sexual assaults, but in that environment, prisoners are treaty with respect.
Speaker 1: I hadn't seen a jail like it where they're calling
Speaker 1: the corrective services officers by names and there's mutual respect
Speaker 1: both sides shout out not only to the prisoners but
Speaker 1: corrective services officers. They work for six hours in whatever
Speaker 1: industry they could find within the prison, and they study
Speaker 1: for six hours and then they all stay in the dorm.
Speaker 1: The interesting part of all the prisoners residing in the dorm,
Speaker 1: I thought there'd be a bloodbath. I thought, yeah, maximum
Speaker 1: security prisoners twenty five in one dorm where they're pretty
Speaker 1: well free to roam and do what they want. It
Speaker 1: actually taught them social skills. And I joked with them
Speaker 1: in there, and subsequently that if there was someone within
Speaker 1: that pod, the twenty five that they didn't get on,
Speaker 1: they'd almost like one of those reality TV shows, vote
Speaker 1: them off the island. We don't like this person, could
Speaker 1: we move out? And I've got to say I was
Speaker 1: so impressed. And it hasn't been running long enough to
Speaker 1: see the after effect the studies that once they've been
Speaker 1: released from prison, But the majority of prisoners I spoke
Speaker 1: to in there said what it sets us up for
Speaker 1: is that it teaches us how to integrate back into society.
Speaker 1: And yeah, these weren't all the do good at prisoners.
Speaker 1: These were some hard cases, you know, the people that
Speaker 1: we all would have heard their names in the media
Speaker 1: for the crimes that they've committed, and some of the
Speaker 1: younger blakes, and there was a lot of people in
Speaker 1: there for lengthy The food there was very good because
Speaker 1: there's a lot of chefs, because chefs got involved in
Speaker 1: drug dealing or who would have guessed, But there were
Speaker 1: people serving lengthy custoviial sentences. And they said, when we're
Speaker 1: in other prisons, the more traditional prisons, every time we
Speaker 1: walked out of our cell, we had to bridge up
Speaker 1: and get ready to take on whoever was going to
Speaker 1: come at us. And there'd always be someone here. They
Speaker 1: felt safe, they could relax, they could let their guard down.
Speaker 1: And I've got to say I was so impressed, and
Speaker 1: I honestly hober gets that type of prison gets integrated
Speaker 1: across the board.
Speaker 2: Look, there's some great things happening in that area. And
Speaker 2: also some of the specialist Aboriginal units are really doing
Speaker 2: some great work with Aboriginal young people and Aboriginal adults
Speaker 2: in terms of connection to culture, and the studies show
Speaker 2: that that leaves will lead to less likely to reoffend.
Speaker 2: The enemy of a good prison system is the tabloid media,
Speaker 2: often having a go at it being too soft. You
Speaker 2: know what the real outcome that you want from a
Speaker 2: prison is people not to return, and we've been failing
Speaker 2: at that. About seventy percent of prisoners will go back
Speaker 2: within five years. Now, prisons like you've just maybe you're
Speaker 2: not going to get to eighty percent not returning, but
Speaker 2: you might well get to fifty or sixty or seventy
Speaker 2: percent not returning. And it looks, you know, the Henry
Speaker 2: Lawson wrote in I think nineteen seventeen when he was
Speaker 2: in prison, he said, the press are printing their smug
Speaker 2: smug lies and paying their shameful debt. They talk of
Speaker 2: the benefits prisoners have and the things that prisoners get,
Speaker 2: and you know, we need to look at prisons and
Speaker 2: go I don't actually care if there's great education or
Speaker 2: great physical surroundings or good food or whatever, as long
Speaker 2: as people are less likely to defend, because particularly violent offenders,
Speaker 2: that has such a long lasting impact. And we know
Speaker 2: that most violent offenders are domestic violence offenders, and we
Speaker 2: know the impact that has on their children and their
Speaker 2: children's children and their families and their partners. And we're
Speaker 2: just anything to put a stop to that. I don't
Speaker 2: care what it costs or how soft it looks.
Speaker 1: Yeah, well, David, when I spent time in there, and
Speaker 1: there was a couple of weeks and I thought, am
Speaker 1: I going soft here? Am I taking that prisoner aside?
Speaker 1: Because you had that go soft on crime? What am
Speaker 1: I talking about? The next cop go soft on crime?
Speaker 1: I spoke to Ken Marslu His son was murdered in
Speaker 1: an arm robbery. Just a young fella working at the
Speaker 1: pizza hut, paying his way through university and an arm
Speaker 1: robbery and he was shot and kill. That was a
Speaker 1: horrendous crime. And Ken was very angry and campaigned and
Speaker 1: led enough is enough and different different campaigns, mandatory sentence
Speaker 1: in getting tough on crime. And I've become quite close
Speaker 1: with Ken since I've left the cops. We knew each
Speaker 1: other before, and I rang him on, Okay, this is
Speaker 1: what I'm seeing in prison. What's your take on this? Ken?
Speaker 1: And he said, that's about getting smart on crime, not
Speaker 1: getting tough on crime. If we can reduce crime, there's
Speaker 1: less victims. Everyone wins. And yeah, that strengthened my resolve. That. Okay,
Speaker 1: that's if anyone's got the right to really question what
Speaker 1: goes on in prisons at someone that's lost their child
Speaker 1: in circumstances like Ken did, and yeah, I think everyone's
Speaker 1: a winner. And as we're talking the other day the
Speaker 1: cost of keeping prisoners in custody, that what if we
Speaker 1: channel that money somewhere else to rehabilitate diversionary programs that
Speaker 1: keep people out of prison. Has to be a benefit to.
Speaker 2: It, absolutely, And the other whole aspect of that is, well,
Speaker 2: who's in prison and who needs to be in prison
Speaker 2: if we make sure that you got the right people,
Speaker 2: the people who really need to be detained. And you
Speaker 2: and I both started in an era where fine defaulters
Speaker 2: were thrown into prison, where possession of a small amount
Speaker 2: of drug led to a prison term. Whereas you know,
Speaker 2: we've rationalized that to an extent. We need to always
Speaker 2: be focused on that if the right people are in prison,
Speaker 2: the community is protected, and not just immediately but in
Speaker 2: the medium to long term. If they're treated like humans
Speaker 2: and given responsibility and learned decision making processes.
Speaker 1: Well, if they're treated like animals, they come out like animals.
Speaker 1: And I've heard prisoners say that, but even the prisoners
Speaker 1: in these maximum security prisons acknowledge that society is not
Speaker 1: for everyone. Like there's people in here and they'll point
Speaker 1: to them, go that person should never be released, and yeah,
Speaker 1: there's one of the people that society need to be
Speaker 1: protected by. Okay. Magistrates, Yes, when describe the role of
Speaker 1: a magistrate, because people look at the magistrates and I'm surprised,
Speaker 1: I'm constantly surprised how many people never actually experience court.
Speaker 1: And it's yeah, there's only a small percentage of either
Speaker 1: the ones that commit offenses or the ones that have
Speaker 1: been caught up in witnessing a crime. There's a lot
Speaker 1: of people that never see and inside of the court.
Speaker 1: So what is the all of the magistrate? How would
Speaker 1: you describe it?
Speaker 2: You know, the magistrate is the call fates of the
Speaker 2: criminal justice system. Every single case starts, every single criminal
Speaker 2: case starts in the magistrate's court. But at such a
Speaker 2: very job. Magistrates are also coroners, so we also deal
Speaker 2: with cronial matters. Magistrates also have a civil jurisdiction, so
Speaker 2: disputes between people up to one hundred thousand dollars are
Speaker 2: dealt within the local court. But crime, all crimes start
Speaker 2: in the magistrate's court. And what that means is even
Speaker 2: a murderer will start in the magistrate's court and then
Speaker 2: go up to high courts, But about ninety three percent
Speaker 2: of all cases start and finish in the magistrate's court.
Speaker 2: And they used to just deal with summary offenses, traffic matters,
Speaker 2: very minor offenses. But over the years, the efficiency dividend
Speaker 2: of having just a magistrate, not a judge and jury
Speaker 2: determining matters means that the jurisdiction has expanded, So magistrates
Speaker 2: deal basically with people who've been charged with the vast
Speaker 2: majority of offenses and determine their guilt and if they're guilty,
Speaker 2: determine their sentence. So the average day of a magistrate
Speaker 2: would be dealing with a defendant hearing, for example, where
Speaker 2: someone's pleading not guilty to a domestic violence offense or
Speaker 2: a cultivation of prohibited plan defense or a white collar crime,
Speaker 2: or more likely than not, a traffic offense, and determining
Speaker 2: if they're guilty. The maximum penalty magistrates can impose this
Speaker 2: five years imprisonment, so nothing like the district court which
Speaker 2: has unlimited and supreme court, but still the nuts and
Speaker 2: bolts of the criminal justice system revolve around the local
Speaker 2: court and the magistrate sits like a judge, but without
Speaker 2: the superannuation.
Speaker 1: And without the wink and come on, David, let that go.
Speaker 1: Let that go.
Speaker 2: I've let it go, or associates for that matter. But
Speaker 2: so there's magistrates in every country town either ones that
Speaker 2: come in each you know, up to certain size. So
Speaker 2: even small towns in this area, places like Kyogle and
Speaker 2: mullam Bimbi and MacLean will each have a magistrate visiting them,
Speaker 2: you know, once a week or once a month, or
Speaker 2: a few days a week, or in Lismore and the
Speaker 2: bigger places every day. So magistrates are at the coal
Speaker 2: face of the criminal justice system and they are the
Speaker 2: judicial officer that most people will come in contact with.
Speaker 2: Just in New South Wales now they're called judges of
Speaker 2: the local court starting next year. Yeah, I heard that
Speaker 2: and it's been the case in the Act in the
Speaker 2: Northern Territory for a while and I think it reflects
Speaker 2: better the role. I mean, who knows, You're right, people
Speaker 2: don't know what a magistrate does, but they'd be more
Speaker 2: likely to know what a judge does. And really they're
Speaker 2: just judges of the local court.
Speaker 1: Yeah, I would imagine it's a lonely job. Sitting there,
Speaker 1: and I say that from my observations, like the prosecution
Speaker 1: they've got their team, the defense have got their team.
Speaker 1: People in the gallery, the media are hanging out doing
Speaker 1: what the media do. A magistrate all on their own
Speaker 1: and making some very big decisions knowing that they're potentially
Speaker 1: going to be scrutinized by some very informed legal people
Speaker 1: sitting above them for different matters.
Speaker 2: Well, and not just scrutinized by them. When I was
Speaker 2: first appointed, my first appointment was Dubbo and the local
Speaker 2: member was Jerry Peacock. And never had you met a
Speaker 2: more law an order a person than Jerry Peacock, who
Speaker 2: also owned the local newspaper. So you can imagine it
Speaker 2: was a real tra effector so. But yes, it is
Speaker 2: lonely because lawyers tend to mix with lawyers in a
Speaker 2: country town. And you know, I was a country practitioner.
Speaker 2: Most of or a lot of my friends were lawyers.
Speaker 2: And then you go to the bench and of course
Speaker 2: you can't mix with the lawyers because they're before you.
Speaker 2: So it is lonely and country magistrates by their very nature,
Speaker 2: sit on their own. It's not like the Downing Center
Speaker 2: or one of the big city courts where you might
Speaker 2: have twenty magistrates and you can all get together at
Speaker 2: more morning tea and have a chat. This was and
Speaker 2: shortly after I. I mean, you know, believe it or not.
Speaker 2: When I started, we used to have morning teas with
Speaker 2: all the lawyers and all the prosecutors. The police sergeant's
Speaker 2: wife would traditionally put it on and we would all
Speaker 2: gaggle and sort out the cases. Well, that was soon
Speaker 2: thrown out quite rightly, but it did mean that it
Speaker 2: was our pretty lonely existence. And you know, I was
Speaker 2: living in Dubbo and you know, you're buying a newspaper
Speaker 2: and the newsagents say why aren't you locking people up more?
Speaker 2: And you go to the checkout and the young woman
Speaker 2: working there saying, hey, you're not going to lock my
Speaker 2: boyfriend up, are you? And you know, so you couldn't
Speaker 2: avoid the area.
Speaker 1: That's like I hear the dramas have been the local
Speaker 1: cop that you're never really off duty. But yeah, it's
Speaker 1: pressure times ten when you're the magistrate of young Susie's
Speaker 1: coming before you next week. She's a good girl as
Speaker 1: you're buying your cup of coffee or something like that.
Speaker 2: So it's I think It is really true of local
Speaker 2: sergeants too, And I think policemen's kids like magistrates kids,
Speaker 2: you know, they get a hard time at times.
Speaker 1: Yes, well, when did you make the decision? So you
Speaker 1: practiced law for a period of time and then you
Speaker 1: set up the university, the law faculty there, when did
Speaker 1: you decide that I want to be a magistrate?
Speaker 2: Jeff Shaw was the Attorney General and he and I
Speaker 2: had had some arguments about a whole set of things.
Speaker 2: We got on very well, but he was sick of
Speaker 2: me pestering and about law changes I wanted to see,
Speaker 2: and he said, I'm going to stop having to deal
Speaker 2: with you soon, and I said, well, good luck with that.
Speaker 2: And then I got the phone call that you least expect,
Speaker 2: which was from the Attorney's the Governor's private secretary, which
Speaker 2: was to offer me offer me a job as a magistrate.
Speaker 2: And I thought, well, you know, I'd come across some
Speaker 2: really good magistrates in my time, there was one phil
Speaker 2: Molean who since passed away. But I'd also come across
Speaker 2: some terrible magistrates who I had very little respect for.
Speaker 2: And I thought, well, I can do this job. Well,
Speaker 2: I can change the world. There's things that I really
Speaker 2: want to make a difference on aboriginal over representation, drug laws,
Speaker 2: you know, things like that. And so I went into
Speaker 2: it with the usual gusto of a good lefty protester
Speaker 2: and thought I could really change things from the inside.
Speaker 2: And that's that's why I did it. Also, you know,
Speaker 2: to be mercenary about it. It meant it was more
Speaker 2: than a doubling of my salary. It looked like a
Speaker 2: terrific secure job until you're at at that time, till
Speaker 2: you're seventy years of old, and I thought, well, this
Speaker 2: is this is pretty good.
Speaker 1: Now. Dubbo is where you first posted. That's a tough
Speaker 1: area to be the local court magistrate. I've spent a
Speaker 1: lot of time in Dubbo, not work there, attached there,
Speaker 1: but through murder investigations and the reputation of the town,
Speaker 1: you would have a lot of people coming through through
Speaker 1: the court.
Speaker 2: There, absolutely, and you know, the magistrates out there aired
Speaker 2: the circuit work as well, which was really hard towns,
Speaker 2: towns that were racked with really deep social problems and
Speaker 2: the criminal justice system. The police and the magistrate and
Speaker 2: the defense and the prosecutors were meant to solve these
Speaker 2: problems and of course we couldn't. We were dealing with
Speaker 2: the we're putting a band aid over a gaping wound
Speaker 2: of a whole range of different things. And you know,
Speaker 2: I would sit in many towns where the only people
Speaker 2: I would ever lock up were Aboriginal people and that's depressing.
Speaker 1: And look, I'm very much aware of the problems and
Speaker 1: the high representation of the Indigenous population in our prisons
Speaker 1: and in our court system, and it's it's quite alarming.
Speaker 1: I have an association with a lot of Indigenous people
Speaker 1: and through them a work mainly through a workers as
Speaker 1: a police officer, and I know that I always felt
Speaker 1: they were disadvantage in the justice system. They weren't comfortable
Speaker 1: in the court, see situation. There was a whole range
Speaker 1: of things that made me feel that there's a reason
Speaker 1: there's a high representation there and the problem is not
Speaker 1: going to be fixed the way that we approached that.
Speaker 1: What's your take on it, because you would have seen
Speaker 1: a lot of that I would imagine in the areas
Speaker 1: like Dubbo and out from there.
Speaker 2: Yeah, it's a disheartening. It's one of those wicked problems
Speaker 2: that and I think the first thing to recognize is
Speaker 2: the criminal justice system can do very little. By the
Speaker 2: time people get to court, by the time they're committing offenses,
Speaker 2: by the time their families are dissolving, it's too late
Speaker 2: to do that much. And certainly, you know, imprisoning and
Speaker 2: the like, and the extent of the problem was and
Speaker 2: is overwhelming. I was really blessed by having great prosecutors
Speaker 2: who saw the problem and bent over backwards to do
Speaker 2: what we could within the limitations of the system to
Speaker 2: deal with people appropriately, and of course talented, young, idealistic
Speaker 2: Aboriginal legal service lawyers who any of whom are now
Speaker 2: the judges and politicians that we are from all sides
Speaker 2: of politics that speak sense to this issue. So we
Speaker 2: muddled through, but it was overwhelmingly depressing. I remember a
Speaker 2: young man who in Wellington Local Court who said to me,
Speaker 2: I sucked his lawyer and said, I'm guilty. He'd robbed
Speaker 2: a bank with a syringe. He said, I'm guilty. I
Speaker 2: just want you to lock me up, but I want
Speaker 2: to go to the big House, meaning Bathist jail. And
Speaker 2: I said, well, why do you want to go there?
Speaker 2: And he said, well, my dad there and my grandfather's there,
Speaker 2: and I'd really like to spend some time with them,
Speaker 2: and I just you know, that sinking feeling and the
Speaker 2: pitious stomach saying that's what you aspire to. So it
Speaker 2: was really quite overwhelming, and we could tinker at the edges.
Speaker 2: But the problems of Aboriginal over representation in the criminal
Speaker 2: justice system are largely not about the criminal justice system.
Speaker 2: They're about the education system, and they're about health. They're
Speaker 2: about lack of welfare and support. And we know that
Speaker 2: programs since then, you know, are like justice reinvestment, like
Speaker 2: circle sentencing. None of that existed then. Many of the
Speaker 2: sentencing options that are available community service work didn't exist then,
Speaker 2: so you know, we were very limited. It was very difficult.
Speaker 2: We all had the goal and I mean the police
Speaker 2: as well, had the goal of keeping people out of
Speaker 2: jail as much as we could and keeping and keeping
Speaker 2: the community safe. But it was an uphill battle and
Speaker 2: inherently depressing. I don't mean that from a clinical point
Speaker 2: of view, but it's just like the drudgery of it.
Speaker 1: Really. Yeah. No, I'm hearing what you're saying, and I
Speaker 1: pick up on the fact that we can't fix it,
Speaker 1: that the justice system and prevention is better than cure
Speaker 1: and if we can prevent them going down that path,
Speaker 1: like the indigenous communities, and when you talk about a
Speaker 1: grandfather in prison and the father in prison and the
Speaker 1: young film, I wants to go in there to to
Speaker 1: seeze relatives. That sort of breaks your heart, doesn't it.
Speaker 1: That's what hope has that young fellow got. I've heard
Speaker 1: people talk about when kids are going off track and
Speaker 1: like restorative justice and diversionary programs. With one person that
Speaker 1: might have been Jaron Badge, an Aboriginal lady that grew
Speaker 1: up in the block and joined the police, very very
Speaker 1: impressive person. She's out of the police now, but she
Speaker 1: talked about a person that was a young fellow that
Speaker 1: was sentenced for minor crimes that might have been a
Speaker 1: bible stealing a bible of something, and instead of a sentence,
Speaker 1: he was told to hang out with one of the
Speaker 1: elders and go fishing with the elder for a couple
Speaker 1: of weeks. And I think, what a great idea something
Speaker 1: like that is that could potentially make a difference, break
Speaker 1: that cycle.
Speaker 2: I saw that a lot with circle sentencing. When I
Speaker 2: was in Lismore for ten years, we ran a circle
Speaker 2: sentencing and so that meant that offenders who pleaded guilty,
Speaker 2: instead of being sends by me, went before a circle.
Speaker 2: And the circle included the victim of the crime, the
Speaker 2: police officer involved, and a circle of elders as well
Speaker 2: as the defense team and all the rest of it.
Speaker 2: So it was a big circle. But you know, there
Speaker 2: was more often than not there was no dry eye
Speaker 2: in the place. You know, it was emotional and it
Speaker 2: was genuine, and it was it was doing that. It
Speaker 2: was seeking to utilize the wisdom and respect for elders
Speaker 2: to affect a proper sentence that would be less likely
Speaker 2: for people to re offend. And of course it's proven
Speaker 2: to be so, which is why circle sentencing is universally
Speaker 2: seen as not the solution, but as part of a solution.
Speaker 1: And if we put our efforts in and our money
Speaker 1: at that point in time, maybe we don't have to
Speaker 1: spend the money we do down the track with people
Speaker 1: when they're incarcerated and all the impact that.
Speaker 2: Has absolutely And you know, I finished up ten years
Speaker 2: on the circuit at Lismore, done and I said to
Speaker 2: some one of the eldest the very last circle that
Speaker 2: I did, you know, I really miss you guys. I've
Speaker 2: learned so much. I'm so glad for your involvement. And
Speaker 2: I just wondered how much you paid for this and
Speaker 2: they said, oh, we're not paid. And I said, this
Speaker 2: is every week ten years we've been meeting as a circle.
Speaker 2: And they go, yep, yep, that's my own time. Not
Speaker 2: paid a cent, you know, And I thought, there's the
Speaker 2: defense lawyer and the magistrate and the police officer were
Speaker 2: all being paid, and the eldest themselves. This is their
Speaker 2: input into the next generation that they care so much about.
Speaker 2: And you know, it was really showed the commitment of
Speaker 2: those people.
Speaker 1: David, you touched on something that I learned very much.
Speaker 1: After I left the police. I thought I was a big,
Speaker 1: tough crime fighter and making a difference on crime. And
Speaker 1: when I've stepped away from policing, I've looked at some
Speaker 1: people that are doing stuff exactly as you've just described
Speaker 1: and not not getting paid or doing it just because
Speaker 1: it's the right thing to do, and they're making more
Speaker 1: difference on reducing crime than I ever could with a
Speaker 1: pair of handcuffs and a gun.
Speaker 2: Or sitting on the bench with a gavel.
Speaker 1: Yeah for sure. Yeah, And I would imagine that would
Speaker 1: be part of it. There's a magistrate feeling that frustration.
Speaker 1: I can see it, I can feel it, but there's
Speaker 1: nothing I can do about it. It's a system and
Speaker 1: the systems set up, and I don't I can tell
Speaker 1: that you care about the job that you do, but
Speaker 1: I don't see you as someone that's just naive to
Speaker 1: the fact. You know, Coulby, let everyone walk free and
Speaker 1: there'll be no problems people the society. Society do need
Speaker 1: to be protected. But I heard an interview that you
Speaker 1: did where you're talking about a young fella that couldn't
Speaker 1: be given bail or he couldn't be released because of
Speaker 1: the nature of the offense, and you ended up catching
Speaker 1: a plane with him. Do you want to just tell
Speaker 1: that story? Because when you talk about dry eyes, I
Speaker 1: was walking along listening to you on that talking about
Speaker 1: I thought that's really really sad, and you could just
Speaker 1: picture it.
Speaker 2: So we used to fly into circuit courts and Brewarrener
Speaker 2: was one of those courts, and when I got there
Speaker 2: one day, the registrar, who's the clerk of the court,
Speaker 2: the administrative person there said, look, we've got no police transport.
Speaker 2: You can't refuse anyone bail any young people bail because
Speaker 2: there's no police officers to take them. And I said, well,
Speaker 2: I'll do my best anyway. In the middle of the day,
Speaker 2: lo and behold, the young person was arrested and there
Speaker 2: was no way he was getting bail, that's for sure,
Speaker 2: and nobody wanted him to get bail and anyway, so
Speaker 2: I refused him bail. And then I got on the
Speaker 2: plane to fly back, and it was like an eight
Speaker 2: seven seedar and I was on one side, and sitting
Speaker 2: right next to me was him, handcuffed to the handhold
Speaker 2: there and looking pretty terrified. Anyway, we acknowledged each other.
Speaker 2: I should say as a prelude, Brewarrener has the oldest
Speaker 2: man made structure in the world, which is the fish traps,
Speaker 2: thirty thousand years old, and you can really only fathom
Speaker 2: them from the air, this intricate pattern of stonework that
Speaker 2: traps the river when it floods, and then people would
Speaker 2: have fish for years, sometimes decades between floods by trapping
Speaker 2: the fishing these dams. So that's about ten times older
Speaker 2: than the Pyramids. In any event, So the plane goes
Speaker 2: to take off and I could see he was shaking,
Speaker 2: and I said to him have you ever been on
Speaker 2: a plane before? He said, I've never been out of
Speaker 2: Brewarna before. And anyway, so we then taxied around and
Speaker 2: started to take off, and as we started to take off,
Speaker 2: he started gagging. The police officer sitting behind him couldn't
Speaker 2: do much, so I grabbed my sick bag, and I
Speaker 2: was holding the sick bag and not really liking bodily
Speaker 2: fluids too much. I just looked out the window and
Speaker 2: he's vomiting in the bag, and I'm looking out at
Speaker 2: the fish traps as we're taking off, and I just
Speaker 2: think that freeze frame of me. It just sums up
Speaker 2: everything that's wrong with the criminal justice system and the
Speaker 2: culture that we're ignoring of these of these ancient people
Speaker 2: with ancient wisdom and connection to land, and there we
Speaker 2: are taking him away from his community and there he
Speaker 2: is vomiting and scared and the police and me. I mean,
Speaker 2: just the whole picture is just one of sadness.
Speaker 1: Really. Yeah. When I heard that, I could just imagine
Speaker 1: that and really in a world that he could not
Speaker 1: understand too in a plane, first time in the plane,
Speaker 1: and it is just terrified, and.
Speaker 2: I mean, now we have language for this. This was
Speaker 2: you know, almost thirty years ago. Now we have language
Speaker 2: for this, which is things like fas D. I mean,
Speaker 2: this was a young man who did not understand the
Speaker 2: consequences of his actions. I mean, I think all of
Speaker 2: us with children know that many children still don't know
Speaker 2: the consequences of their actions. But this is a really
Speaker 2: fundamental problem. And you know, now one would hope we
Speaker 2: would be treating this younger rather than just locking them up.
Speaker 1: Yeah, I think those type of improvements and it's not easy.
Speaker 1: We're seeing here going it's not waving a wand and
Speaker 1: the world will be fixed. We might take a break
Speaker 1: at this point. When we come back, I'll talk more
Speaker 1: about your role as a magistrate because twenty one years,
Speaker 1: I'm sure you've seen a lot talk about the impact
Speaker 1: of drugs and in particular ice, when you've seen ice
Speaker 1: come in. I saw that in the latter part of
Speaker 1: my police career, the type of impact, but that sort
Speaker 1: of changed the dynamics for what you were dealing with
Speaker 1: in the courts. I think you've had dealings with sovereign
Speaker 1: citizens there. That's always an interesting chat. On my catch
Speaker 1: killers have upset a couple of sovereign citizens on things
Speaker 1: that we've said from people that were impacted by sovereign citizens.
Speaker 1: I'd also like to take a dive into your thoughts
Speaker 1: on artificial intelligence AI and how that's going to impact
Speaker 1: on law down down the track, because I think that's
Speaker 1: an interesting area to go to. And I do want
Speaker 1: to speak to you about the reason as a magistrate,
Speaker 1: and we talk about a lonely job and a risky job.
Speaker 1: There was a period in time for one particular person
Speaker 1: where you were had to move out of your home
Speaker 1: and put in a secure location because of the threats
Speaker 1: made against you. So whole range of things to talk about.
Speaker 2: Have we only got another How are we going to
Speaker 2: possibly do that?
Speaker 1: We could extend it. I'm sure we we'll manage our best.
Speaker 1: I'm sure we'll come and go Okay, great, Thanks, cheers,