The good, the bad, and the bench!

Masters of Law, Class of 1997

Former NSW Magistrate and Co-founder of the School of Law and Justice (SLJ), David Heilpern, judges himself as “just a person, doing a difficult job,” but it only takes a few moments speaking with him to appreciate the accomplished, centred, and humble man he is.

A husband of 36 years, a son, father and grandfather, David has stepped down from the bench and is publicly confronting his demons giving raw accounts of his experience with vicarious trauma, from the many years of hard-decision making as a magistrate.

David speaks of his beloved law as being likened to that of a great novel, of the intrinsic intersection between law and the arts, but unsurprisingly, it is the trauma within each story that has pointed him towards retirement. Now, after years of exposure to wrongfulness, death threats, situations unfathomable to most, David is upbeat as he maintains people are mostly good, as he embraces his new found freedom to speak freely, though teaching, activism, and most importantly bringing attention to vicarious trauma in the industry.

David’s relationship with Southern Cross University began in 1989 when he and Richard Harris, (teaching Business Law at the time), were tasked to set up a law school.

“It was a really exciting time where Richard and I had a vision that the Law School would train really good country lawyers, and that’s how we sold it to the politicians — if you want people to be country lawyers, you’ve got to teach them in the country.”

When asked what he loves the most about law David’ explains he “has always seen the practice of law as better than fiction in real life.”

“I think law is inherently interesting, it’s like a continual soap opera. Sitting in court being an advocate, is like a movie or a great novel. Every time a case came before me in court, I saw a story, and generally they’re riveting, thrilling really,” he said.

“A good example of this is the famous Dudley and Stephens case, where three people in 1884 are starving to death in a life raft and draw short straws to decide who is going to knock off the cabin boy to eat him to stay alive — and then they are charged with murder. This poses the question is necessity a defence to murder? You don’t get better than that in novels or real life.”

But in all great novels, there are trials and tribulations, and towards the end of his time as Magistrate, David said he was damaged, by the nature of the work, and this lead to his stepping down.

“Since the royal commission the courts have been flooded by child sexual abuse cases, and child pornography — it takes a toll, and I was feeling pretty damaged by that. The injustice of the Drug Driving Laws and the Driving Laws in general, also weighed heavily, so I felt like I could do more outside of in the tent than in,” he said.

“As a magistrate, you can’t talk about public policy, you can’t complain about bad laws, you can’t be a commentator on things, and that became increasingly frustrating for me. Since stepping down, I’ve spoken at a Black Lives Matter rally, I haven’t been able to do that sort of thing for literally decades, and I feel free.”

Mr Heilpern said it was the countless hard decisions that he would make as a magistrate that really weighed on him.

“I have found there are far less hard decisions in practice than there is on the bench. You do a bail application as a lawyer, and you do your best and you put the information before the court, but you aren’t the one making the decision. As a magistrate or a judge it can be lonely, you need to make these decisions on your own with really significant implications,” he said.

“In the last few years before I quit, I granted bail to two young people who then at knife point, raped a nurse within hours of them being released on bail. I refused bail to someone who within three hours was shot dead by corrections. Some days I’d be making 20, 30 bail decisions in a day. The implications of what you do are so significant and you have so little time to reflect on the decisions you are making, it is wonderful not having to make those hard decisions.”

Having seen the very best and the very worst of humanity on the bench, Mr Helipern said he actually saw very few people he would describe as bad people.

“In my view, most people don’t want to commit crimes, most people genuinely don’t want to hurt their partners, they don’t want to be in a position where they are stealing things, they don’t want to be drinking and driving, they actually genuinely want to be good and wholesome members of the community. I never really saw many people as being bad in that sense, you can find the good in most people” he said.

“I saw an enormous amount of goodness and bravery, and trying to climb mountains of despair in their lives. There were some people who were really dangerous and predatory, but not many, probably a dozen the whole time on the bench did I form the conclusion these people were beyond redemption, and were a danger.”

When asked if he believes a leopard can change its spots David said he often saw evidence of this.

“I saw a huge amount of change whilst sitting in court, you sit in a town long enough you get to see people over and over again, and some of them have really great success stories,” he said.

“We are all interrelated, if there is injustice to one, there is injustice to all. What Buddhism has taught me and my own philosophy is that we are all connected and there is a beautiful saying that is “until the last chain falls, freedom will make slaves of us all”, that really sums it up, this isn’t just happening to ‘them’, this is not just happening to others, this is us, this is our society and unless we change that, it will bite us all. I come from a holocaust survivor family and what the biggest lesson of the holocaust is that it only takes good people to remain silent for evil to triumph.”

Looking to the future I asked David what legacy he would like to leave and “in terms of the bench, the legacy he hopes to leave, is speaking out about vicarious trauma — and the impact on himself and on other judges and magistrates.”

“It’s more than just saying this affected me and is really terrible. Judges and magistrates are just people doing a difficult job, and demystifying, removing the gown and the wig, removing “your honour” and “your worship”, is extremely valuable to me,” he said.

“For me to say “I suffered from vicarious trauma” as a result of sitting through child sex cases is something I am proud of.”

“A great piece of advice I was once told is to remember to breathe — and it’s taken me a long time to learn how and since I have, it’s served me well. I even had a little sticker on the bench saying remember to breathe”.

In the next chapter of David’s story, you will find him centre stage, speaking his truth, openly sharing his highs and lows. His story is far from over as he trades the Director chair as a Magistrate, for the lead role in his own story — I hear you may even see him on stage at the theatre — one of his other great loves.

Story by Kim King.

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