Police Should Not Decide Bail for Fellow Officers: An Interview with Former NSW Magistrate David Heilpern

Former New South Wales Magistrate David Heilpern is calling for an overhaul of the NSW police bail system as it continues to see police officers making the decision on whether their fellow officers who fall foul of the law should be granted bail on arrest or whether they should be held on remand.

Bail is a legal mechanism that allows suspects arrested and charged by police to then be allowed back into the community, whilst they await their day in court. Being released on bail is usually accompanied by bail conditions, such as reporting to police or keeping a curfew.

The NSW system of bail involves police at the station as an accused is being charged, deciding upon whether to grant bail or to remand them. If police refuse an individual bail, then that person must attend a bail court hearing before a magistrate as soon as possible, so that bail can be redetermined.

The reason Heilpern is raising the issue is in regard to recent examples of police bailing police revealing that officers are being bailed or allowed to walk free with a future court attendance notice (CAN) and no bail conditions, in circumstances where civilian suspects would likely be remanded.

Protecting their own

The ABC revealed on Sunday that 42 NSW police officers have been charged in relation to domestic violence crimes since 1 January 2023, and of these, only 10 were bail refused by fellow officers, while 14 were granted conditional bail, and 18 simply walked out of the station with CAN in hand.

The NSW Police Force told the national broadcaster that any seeming discrepancies in these figures are simply that, because police officers charged over domestic violence are “treated like any other members of the community”.

One highlighted case involved a 28-year-old officer, now suspended without pay, being arrested in January and charged with four counts of stalk/intimidate and three of common assault, yet he was then released with his court attendance notice and devoid of bail conditions.

While a 41-year-old senior officer recently walked from the station holding her CAN, after being charged with two counts of stalk/intimidate and one of common assault in relation to two family members.

Sydney Criminal Lawyers spoke to now Southern Cross University Dean of Law and Chair of Discipline Professor David Heilpern about why police can’t be trusted to treat their fellow officers like other offenders when determining bail, and what sort of system ought to operate in its place.

Professor Heilpern, you’re calling for an overhaul of the NSW police bail system, so that NSW police officers are not making decisions on whether their fellow colleagues who have been arrested over a crime should be granted bail.

So, how is the bail system in this state operating when it comes to NSW police officers, who are alleged to have fallen foul of the law? And why do you consider it problematic?

I start from the premise that police should generally not investigate police. I appreciate that the less serious the crime is, traditionally, there is less external investigation of police.

But when it comes to domestic violence, and particularly, the initial decision on bail, it should not be determined by other police officers, there should be involvement of the DPP at the very earliest stages, so that there cannot be any suggestion that police are getting favourable treatment.

At the moment, police officers are determining police officers’ bail. In Victoria, it is at assistant commissioner level, which would be preferrable to what we’ve got here.

At present, in NSW, the police commissioner said today that we comply with the Bail Act, and they do: an independent officer at the rank of sergeant or above determines bail, but they could be from the same station. They could be from the same command and that is inherently problematic.

You’ve raised this contention particularly in relation to domestic violence crimes. Why does this category of crime provide a heightened reason to change the current system of police bail?

We’ve all been shaken by the situation where a police officer was charged with the double murder of his ex-partner and their new partner, but we’re also aware of the real danger period between disclosure, charging and appearing in court.

Those people who are victims of domestic violence where the alleged perpetrator is a police officer, deserve the same level of protection as everyone else in the community.

The report in the ABC, the statistics shown there and some of the cases indicate that this is really questionable.

These are cases where I have never seen a situation where a person is on such domestic violence charges and on bail, and in some of those cases, they were just given a court attendance notice and that is just not good enough.

So, the outcomes of the police cases appear as anomalies?

They do, indeed. I get that some police would inherently not have a prior criminal record, whereas not a lot of other defendants may, but I have never seen a person charged with significant domestic violence offences who has not been on bail for obvious reasons.

Bail conditions are there for a reason, and to simply place someone on an attendance notice, without any bail conditions, in a situation where there are repeated, multiple domestic violence allegations and charges, seems to be inadequate, and it opens the police up to the suggestion that it is one rule for them and another for everyone else.

The easy way to avoid that is to ensure there is an independent assessment, as opposed to an internal assessment.

You were a magistrate, who presided over the NSW Local Court for two decades. Is policing bailing police something that has been considered problematic for a while?

I had very few police officers before me charged with domestic violence offences. I can’t say that I noticed a differentiation of treatment.

But when the ABC approached me for the story, and I was sent the 42 case examples that were quoted in the ABC research, when you look through those, there is a pattern where a significant number of them were not dealt with in a way that I would have expected them to be dealt with.

I can honestly say, I cannot recall a single domestic violence matter that was only dealt with by court attendance notice, as opposed to arrest and bail conditions, and yet, there was almost a quarter of those in the case study that fitted within that category.

So, while I can’t say that while I was sitting as a judicial officer, I noticed any anomaly, because obviously they are spread thin and wide, but when you look at those figures, it is certainly concerning.

The NSW Police Force released a statement maintaining that its officers are treated no differently than other suspects, including in relation to domestic violence matters.

So, why shouldn’t we simply accept these reassurances from the state law enforcement agency?

The truth is police have resisted independent investigation of police over decades, and as a general rule, police have to be dragged kicking and screaming to any level of independent assessment of criminality.

I’m not just picking on police, there is a reason why, for example, in an investigation of judicial officers, the Judicial Commission has independent public members making assessments.

There is a reason that real estate agents don’t investigate real estate agents, and that is there is a professional loyalty that exists within all organisations.

Now, I would love to accept that on a majority of cases police are objective in their determination of bail, but that is not what the figures suggest.

You have a quarter of the police charged with domestic violence offences, who are not placed on any bail conditions whatsoever, which belies the suggestion that it is being dealt with completely objectively in all cases.

The easy answer is to have external oversight, presumably by the DPP, then people would be more comfortable.

There is a huge disincentive for the partners of serving police officers, who are alleging they are the victims of domestic violence, to put their hand up in any event.

So, we have to make sure that at every step of the way that their interests are protected.

Main image: Former NSW Magistrate and current Southern Cross University Dean of Law Professor David Heilpern. Photo credit Jeff Dawson at the Byron Shire Echo