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Byron Shire
May 9, 2021

No accountability for proven police misconduct

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The 1998 Australia Day Nude Ain’t Rude rally on Belongil beach. Photo Jeff Dawson

David Heilpern

On Australia Day in 1998, I was the legal observer for the ‘Nude Ain’t Rude’ rally at Belongil Beach.

There were hundreds of naked protesters, angry at the police for targeting hippies swimming in their birthday suits.

I was, by far, the most modestly dressed in my suitably long ‘Legal Observer’ t-shirt.

There were no arrests, and the constabulary stood on the sand hills and watched and took photos for their files.

Somewhere in a bottom (pun) drawer at Byron Bay police station, there are photos of Nudies Ain’t Rudies attendees flaunting their much younger stuff. It was only when we returned to our cars that we saw police handiwork.

Almost every car had a parking ticket or sticker or notification for defects.

All were false – mine was for a hair-thin crack in a wiper blade. Some just paid their fines, but those that fought, won.

Fast forward to May 2019, and an affable competent solicitor in a far north coast country town, not too far from Byron, who was representing a person with bikie connections in the local court.

The police were from strike force ‘Raptor’, otherwise known as the bikie busters.

The day before court, police held a briefing, where a senior police officer directed two junior plods to target the solicitor. One was told to ‘engage with him’, and ensure that ‘he does not make it to court’. And they dutifully waited outside his house and booked him for failing to indicate as he reversed out of his driveway.

Then they followed him and issued him with a major defect notice for an oil leak, banning him from using his car.

After he walked home and got his motorbike, they issued him with an environmental noise ticket, even though they had not heard the bike running.

He was so spooked he told the court he could no longer act, and requested permission from the magistrate to leave by the staff exit to avoid further interaction with the police.

This intimidatory conduct was not disputed when the matter went before the Law Enforcement Conduct Commission (LECC). It detailed the stalking, lying, bullying, false charges, humiliation and intimidation meted out to a lawyer just for doing his job.

And not just to him – to his partner, and even a taxi driver that dared to give him a lift.

There was no oil leak or adverse noise. It was an invention. The indicator offence was described as ‘deliberate, deceitful and malicious harassment’.

It illustrated the sense of entitlement that has developed within strike force Raptor, and that this represented a complete failure of management. The LECC found that the performance of the solicitor’s role was interfered with, and that the targeting was not done for a legitimate policing purpose. ‘Serious misconduct’ was the finding.

But the real sting of disappointment is in the consequences. I was reading through the report, expecting a recommendation of criminal charges, or at the least for sacking someone.

How wrong I was – no criminal charges, no sacking. Just a recommendation of reviewable action by the Commissioner against the police involved – an internal disciplinary process that could be like being slapped with a wet lettuce leaf. I don’t know what you have to do to be sacked or charged with perverting the course of justice in this day and age, but surely this was well and truly over the line?

But what do we expect when a policeman faceplants a young First Nations’ man into the ground (almost a year ago) in Sydney, and yet no charges or even a word on disciplinary proceedings have eventuated. That must be the longest investigation in human history, where all the evidence is actually on seventeen seconds of audiovisual footage we have all seen. And maybe we up here have been hardened by the dismissal of the case against a Byron Bay police officer who struck a young person 18 times with a baton, six of the strikes occurring after he was in two pairs of handcuffs and was being restrained by several police officers. Not guilty of assault. No word on disciplinary proceedings there either.

One of the key features of a police state is a lack of accountability of the police themselves. I genuinely fear for our fragile democracy.

Let’s not hear of any more tired analogies of ‘bad apples’ for two reasons. First, if you aren’t picking the rotten apples out of the box, their rot will spread. And secondly, bad apples come from bad trees.

Accountability breeds good practice; unaccountability is a blank cheque for misconduct.

I was asked recently, ‘Aren’t you afraid of the police because you speak out against them, aren’t you scared of retaliation?’ Well, yes, sometimes I am. So I check the rubbers on my wipers regularly, I don’t act for bikies, I don’t drug drive and I swim dressed in my worn out legal observer t-shirt at Belongil in an act that is part paranoia and part hypervigilance.

But actually, I keep speaking out because I’m more afraid of something else;
the mirror.

Recently retired magistrate David Heilpern. Photo Jeff Dawson

David Heilpern is a recently retired magistrate and the author of several law-related books, journal articles and reported judgments.

He was the youngest magistrate in Australia when appointed in 1998.

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  1. Fragile is not the word. How about crumbled away but pretending it isn’t? How astounding that someone with the community standing, perspicacity and experience of David Heilpern should speak out for the rest of us like this! Is there hope for us after all?

  2. So very thankful to have you in our community David .
    It appears nothing much has changed in our police force since settlement ,what ! Only a couple of Hundred years !
    The good apples must feel bad, I’m hopeful there will be many more good in the future .

  3. Here is an example of conundrum.
    Scenario 1
    The actions of a certain police branch are effective but not by the book, hence illegal.
    Said police actions are designed to ensure they obtain a conviction against an organised crime group, ie bike gangs.
    (you can paint the picture of a 1% bikie gang any way you want to, but lets be honest here, they deal in other people’s misery)
    Due to the police branch’s illegal actions, they break a drug ring in your community, removing a large supply of meth from our streets. some kids may be saved by this action, assaults, break and enters, property destruction, abuse of hospital staff and police may never happen because of the break in the supply chain.
    Scenario 2
    The police branch, “play it by the book’
    The organised crime gang are not convicted through a lack of evidence that could not be obtained due to a legal system that overly protects them.
    They continue to sell meth. more kids are addicted, “your kids”. Your wife, while working in the emergency room is brutally assaulted while treating a meth addict who is out of control. The same meth addict smashed your brothers business in a break enter steal before assaulting and spitting at the police that arrested him and took him to hospital for treatment for his injuries. And still the bikies deal in their death products.
    Which is the better scenario, which scenario would you choose if the addicted child was yours?
    I’m not advocating one over the other, I am simply stating there is no perfect way and a strong leaning to the left or the right will have consequences one way or the other.
    To quote a line from American Sniper.
    “There are 3 types of people in this world: Sheep, Wolves and Sheepdogs. Some people prefer to believe that evil doesn’t exist in the world, and if it ever darkened their doorstep, they wouldn’t know how to protect themselves. Those are the sheep. Then you’ve got the predators who use violence to prey on the weak, They’re the wolves. and then there are those blessed with the gift of aggression, an overpowering need to protect the flock. These men are the rare breed who live to confront the wolf. they are the sheepdog.
    If you are one of the sheep, hate the wolves, not the sheepdog!

    • Scenario 3. Police target competing meth operations while protecting others which pay dividends because… well because, as the nsw rumcorp, they can. They don’t care about my wife or me.

  4. Stand firm for truth David. Without truth there can be no trust. We (hopefully ‘we’)
    have seen all this many times from so called authorities who fail dismally time and time again for lack of guts, to put it lightly.
    Plenty of evidence and legal representation for lies and misconduct but little for the little guy who falls short of the ‘book’ of conduct.
    Check out the many cases paid out each year for “excessive force” by the politicians and police superannuation accounts (joke of course, yes that would force change).
    No, WE (taxpayers) pay for the huge price of this misjudgement, overt disgraceful policing and social misconduct by those apparently obliged to ‘protect and serve’.
    Keep going, change will follow the strong not the weak and misguided.
    Love is easier to police, when will that become truth?

  5. The police actions against the solicitor were not stopping crime, they were, by their own admission, an attempt to prevent the solicitor from getting to court to do his duty and represent accused men. They were, that is, perverting the course of justice. That’s much, much worse than “breaking the rules”. And they were doing it out of sheer spite–as you can see if you read the Law Enforcement Conduct Commission’s report.

    As well as charging the solicitor with failing to sign a turn as he backed out of his gate (a charge later dismissed, because to do wo would have been misleading and dangerous), they invented a set of defects on his car–defects which mechanics late declared were not to be found.

    Had they done these kinds of things to a magistrate or a judge, they would be in prison.

    As for battering a teenager while he was in handcuffs and held by other police–what crime is that stopping?

    I have learned from a distinguished defence barrister that attempts by police to stop defence counsel from appearing for unpopular defendants is common. It is time the law made such attacks explicitly illegal.

  6. Thank you, David Heilpern for your outstanding work as a magistrate, lawyer and community member.
    Your courage in speaking out about police misbehaviour and the unfairness and misapplication of many of our laws is appreciated.

  7. It was from NSW Greens politician, David Shoebridge, & in Sydney that I learnt about this particular incident of NSW Police improper conduct. The intimidatory conduct in itself made for shocking reading, but to then learn that police are investigating themselves, and so , no charges ensue for the instigator & co, seems reflective, and depressingly so, of an absence of consequences for officials.
    Sadly, it appears, current policing in NSW, at times, hearkens to the pre-Fitzgerald Commission – in QLD – days, police practices of old, vividly chronicled by journalist, Matthew Condon. Victoria’s recent Royal Commission into the handling of informants, likewise has shone the spotlight onto the compromised, & unlawful conduct of some police.

  8. I love you so much David.
    For the person you are to write this and put your name to it.
    It takes courage to say things the way you have!
    Your an unexpected hero in my life from now on.


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