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27 Sep 2014 Nigel Hunt, “The Accidental Judge” The Advertiser SA Weekend Edition

A formidable barrister then judge, Justice Michael David took on some of SA's toughest cases, upholding the law regardless of his personal beliefs, yet he admits to having simply drifted into his legal career. Michael David readily concedes he was hopeless at school.

He spent more time looking at the sports field through the window of his Rostrevor College classroom than reading the blackboard. He enjoyed English and history - which would become an enduring passion - but fell down in maths and science.

So how then, did someone with such poor academic qualifications become one of the state's top legal practitioners - rising to the top in several spheres. Justice Michael David has literally crammed two careers into one. First, he became one of the state's top criminal silks, only to then accept a position on the District Court bench, followed by the Supreme Court bench.

When he retires on October 25 he will be 's longest serving judicial officer, having spent the past 18 years presiding in the two jurisdictions.

In a frank interview, David admits he practically fell into his legal career by default. "To be honest and truthful, if you were hopeless at those subjects at school in the '50s and '60s you either became a teacher or a lawyer," he says. "There's no more to it than that. I just drifted into it, to be quite frank." He went through law at Adelaide University with contemporaries John Doyle, John Sulan and Tom Gray, along with a number of current District Court Judges.

While completing his final year he took his articles with Stevens Jacobs Mellor & Bollen, cutting his teeth on work for the RAA involving contested traffic cases in the Adelaide Magistrates Court. "It was before radar so people did contest them, back then police had to follow someone and time them," he says.

"There were no on-the-spot fines like today. People did plead not guilty to a speeding offence and they would get off a lot of them because it was very hard to prove. "It was good training. They were fought like murder trials." It was at the very start of this process that David had his moment. Walking into a packed courtroom for a simple adjournment of a matter, he was instantly struck. "I thought 'this is a job I could do.' "It happened straight away. I felt really comfortable. I had felt comfortable in a lot of other situations, but not like that." It was at that singular moment he decided he wanted to be a barrister. He stayed with SJMB for four years after being admitted in 1969. In 1973, he shifted to Bar Chambers. In his 20s, he was the most junior member of the fledgling Independent Bar and had to rely on briefs fed to him by more senior members, including founder Christopher Legoe, until he gradually picked up his own clientele of solicitors who briefed him.

It is an era he fondly remembers. "I can say it was the most exciting time of my life," he says. "The formative years, out by yourself and totally dependent on your own ability with a group of likeminded people. It was tremendous." David's talent was recognised quickly. He developed a reputation as one of the most devastatingly efficient, incisive and pragmatic cross-examiners to enter a courtroom.

It didn't matter whether the brief was defending a drug trafficker or, as often occurred, accepting a case from the Crown to prosecute an alleged offender. He relished both.

He still remembers his first significant defence brief, a 1973 smuggling case that involved native birds being shipped out of Australia. The offenders had caught them on the River Murray, were trucking them to Derby in Western Australia and then flying them out of Australia. He remembers his client was driving the truck. "Sadly, my client parked it outside of a hotel at Derby and the local police officer heard the birds twittering in the back and the game was up," David says. His client was convicted after pleading guilty.

Appointed Queen's Counsel in 1986, David would be associated with a plethora of SA's major criminal cases. For a barrister, they were dream cases that grabbed both the headlines and the public's curiosity. The names of the accused have dominated SA's long list of cases that are now etched in our notable crime history.

Think disgraced cop Barry Moyse; think phantom rapist Brian McDonald; think self-defence killer Kingsley Foreman; think the Dr George Duncan drowning accused; and, most famously, war crimes accused Ivan Polyukovich, Heinrich Wagner and Mikolay Berezowsky.

Glancing around his Gouger St chambers, it comes as no surprise to learn that he views his most significant brief as the war crimes trials. The lever-arched case files from the trials occupy a sizeable area of shelving. And two decades after their conclusion, David still finds himself drawn back to reading them. Such was their significance, the war crimes cases saw two of the state's keenest legal minds work together for the first time. David secured Lindy Powell QC as his junior counsel to defend the accused men - and ultimately saw all accused either acquitted or the charges withdrawn or dismissed. His keen interest in war history ensured his full attention from the outset. While the allegations were horrific, in a forensic sense he could not believe his good fortune to be involved in such an interesting case.

"They were so unique and so intensely interesting at every level," he says. "We had to face each challenge as it came. The evidence came from all sorts of eclectic corners, there was scientific evidence there as historical evidence. But it basically came down to eyewitness evidence like any other trial, when you stripped it all down after all those years." He still remembers Ivan Polyukovich well. Though elderly, he was still on the ball.

"He knew what the allegations were against him and he told us his story," he says. When asked if he had any sympathy for not just Polyukovich, but the other two war crimes accused, he stopped briefly and prefaced his answer. Although fearing it may sound callous, David bluntly says he has never had any empathy for his clients. That, quite simply, is not his job. He was never hired to feel sorry for them or sympathise with their predicament, only to prove their innocence. "I never did. I tried to be as professional as I could. I think once you start empathising with your client you don't do a very good job," he says.

"I realise people go through a horrible time going into court, but I can't worry about that.

"Your job is to win the case. I'm not a social worker." He also remembers the Barry Moyse case as one that was "very tough, very difficult" to prosecute for various reasons, albeit different to the Polyukovich case. Moyse was a respected, popular police officer with a deeply loyal following within the ranks of the SA police. The key witness against Moyse, George Octapodellis, was a troubled heroin addict who had to be nursed constantly through the trial to ensure he was still on side.

David described the work done by his instructing prosecutor Peter Snopek, now a magistrate, that ultimately resulted in Moyse pleading guilty as "just brilliant." Snopek matched the broken hashish block found in the boot of Moyse's police car with the other half in storage in a police evidence storeroom. Moyse had snapped in it half, logging in one piece and he was intending to sell the other. When the two blocks were put together, the edges matched perfectly, destroying Moyse's defence.

"Peter came to me one day and said I have something to tell you," David says. "It's not often you get a break like that." When confronted with this irrefutable evidence, Moyse changed his plea to guilty. There was other evidence, including a covert recording of a deal with Octapodellis, but Snopek's work proved to be the turning point in the case.

While he clearly enjoys reminiscing over past cases, there are some still off limits. Convicted killer Henry Keogh's case is one. David was Keogh's lawyer in his Supreme Court trial in 1995 at which he was found guilty of murdering his fiancée Anna Jane Cheney. That case has been the subject of lengthy appeals and subsequent inquiries and is still before the Supreme Court.

Such is the insular nature of Adelaide's legal community, many foes seated along the bar table are mates once they walk outside the courtroom. Case in point, just months after David duelled with QC, who prosecuted Keogh, David was representing him in Adelaide Magistrates Court when Rofe was charged with drink driving. "While the trial is on you put that friendship aside, but once it is over you are friends. It never compromised anything, you obeyed certain rules," he says.

While the majority were friends, David has his opinions of those he has encountered across the bar table. He knows who the good ones are, and those who just bumble through. "We're all human, the same as any profession. Some I like, some I don't like," he says.

While he has done his fair share of prosecuting, David's first love remains defending. "I just think there is more scope for creativity, forensic creativity, when you are defending someone. It was fun, not that fun is really the right word." "Prosecuting, it is a myth to think it is easy, it is not, but it is a different sort of skill, a more controlled skill." Like all barristers, David has found himself in the situation of knowing full well his client is guilty, despite them maintaining the opposite stance.

"I've often had that feeling from the start," he says wryly. "There's nothing you can do about that. You have got to put his instructions, his story. It's his story, if he says he is innocent, no matter what you personally think of the story. "I'm not judging him, I might be wrong. That's just the way I practice. It has got to be objective, it has got to be professional and you just can't get involved with it all thinking is this right or is this wrong.

"If he says that is what happened, I want to plead not guilty, your job is to put that the best you can." A glimpse of what has contributed to David's success lies in an Adelaide University press paper published several years ago. He contributed a chapter titled Closing Addresses. It should be the bible for any junior barrister or prosecutor embarking on their career. In it, David shares some of his secrets. It also reveals his sheer enthusiasm for arguing cases. "The whole point of an address, and the whole point of being an advocate is to persuade a person or a group of people to your point of view," he states. "To do that is a very personal exercise. It must emanate from your own personality.

"It makes no difference whether you are talking to a friend or whether you are in court. In my view, that is the most effective way of doing it." He says that a lawyer's closing address "is the most enjoyable part of the case" - and something no lawyer should be nervous about. "The only nervousness you should have is that pleasurable nervousness of excitement and anticipation," he states.

In 1996, for reasons he still is unsure of, David accepted a position as a District Court Judge. He candidly says now his decision may well have been a mistake. "I think I regretted it and I was very unhappy for a long time. I missed the bar terribly and I think I made a mistake. I felt that way for a fair while." He says he sorely missed the camaraderie and the feeling of "flying by the seat of your pants and not knowing what was around the corner." The contrasts could not be more stark. A barristers' life hardly compares with the lot of a judge where everything is controlled, regimented and calendars are fixed months in advance.

"I'm not a natural judge, I have to be honest about that," he says. "It's a very, very responsible and important job, but I enjoyed the bar more." David admits it took him "a couple of years" to start enjoying his new role. A similar situation occurred with former District Court judge Marie Shaw, but with a different outcome. Appointed in 2005, she bravely quit the bench in

2010 to return to the bar, teaming up with friend Michael Abbott QC, to form Gilles St chambers. "I admire her for making that decision. She wasn't happy so she went back. I thought that was terrific," David says.

He spent a decade on the District Court bench before being appointed to the Supreme Court - finding the appellant work in that jurisdiction more interesting and challenging than District Court trials. In a legal career spanning 45 years, David says the two most dramatic changes he has witnesses are the use of DNA evidence in criminal cases - and the sheer volume of cases today.

"When you think of some of these old, mysterious cases like the Stuart case [in which Rupert Maxwell Stuart maintained his innocence and had his death sentence for murder commuted to life imprisonment], that there have been books and bibles written on, if you had DNA evidence then there would be no dispute at all," he says. "The bloke would never have been arrested or he would have pleaded guilty. There are a lot of cases like that where there is no issue because of DNA." He says while trials have not changed too much, the complexity of many criminal trials has increased "unnecessarily so." "It's something I'm really interested in, why have we become more complex. Forgetting forensic evidence, putting that aside," he says. "I don't think justice was any less served when they were less complex.

How that is going to be cured, and I think it must be cured, I'm not quite sure. "There is a chance the truth might get lost in the complexity of it all." There is little chance, however, that David, who turns 70 the day he retires, will remain idle.

A tragic and Geelong fan, he plans to indulge his love of war history, watch old movies and try to keep fit. It's apt that David's favourite movie is Humphrey Bogart's Casablanca. He and Bogart's character, bar owner Rick Blaine, share many traits. Both possess a calm, charismatic demeanor coupled with a devastatingly economic, direct use of plain English language that commands not just attention, but respect.

MICHAEL DAVID'S HIGH-PROFILE CASES

The Dr George Duncan drowning, May 1972 Michael David represented one of three accused former police officers, Francis Cawley, who was eventually acquitted in 1988.

The war crimes trials in the early 1990s David represented Ivan Polyukovich, Heinrich Wagner and Mikolay Beresowsky in the trials that attracted international interest. The charges were either withdrawn or the accused acquitted in each case.

Henry Keogh murder trial in 1995 David represented Keogh when he was tried and convicted of murdering his fiancée Anna Jane Cheney.

SA police office Barry Moyse trial in 1988 David prosecuted then drug squad boss Barry Moyse in 1988. Moyse received a 21-year sentence.

Kingsley Foreman murder in 1996 In his last Supreme Court trial in 1996, David represented tow truck driver Kingsley Foreman, who had been charged with murder after shooting an armed robber at a service station. Foreman was acquitted.

HIS FINAL TRIAL JUSTICE Michael David's last case was perhaps one of the saddest he has ever presided over. It was also one of his hardest.

His final trial involved the bashing murder of murder of toddler BJ Williams. The two-year- old suffered brain injuries after being beaten in the early hours of January 14, 2012. NINE MONTHS AGO, Brock Michael Powell, 25, the boyfriend of BJ's mother, Latana Hunt, was found guilty of his murder. He received a life sentence with a 21-year non-parole period, but won a retrial after appealing his conviction.

ON SEPTEMBER 5, after 11 days of hearings David acquitted Powell of murdering BJ - even though he suspected he "probably" bashed the boy and inflicted the fatal injuries.

In his judgment, David says it had been proved beyond reasonable doubt that BJ's injuries were not caused by an accident.

The court heard BJ was assaulted after Powell and Hunt returned home from a hotel and argued. Both had ingested alcohol, methamphetamines and marijuana.

Both Powell and Hunt had access to BJ after returning home and prior to his body being found wedged between a mattress and wardrobe several hours later.

David said both had told lies and were unreliable witnesses, but he could not discount the hypothesis Hunt may have inflicted the injuries to BJ while alone with him for a short time. "I find it proved beyond reasonable doubt that whoever perpetrated this assault did so, even though it may have been spontaneous, with the intent to cause grievous bodily harm," he stated.

"I suspect it was the accused. In fact, I think it probably was him. However, on the evidence placed before me, I cannot be convinced that that is so to the requisite onus.

"I have reasonable doubt that he did it, and I must give effect to that." While Director of Public Prosecutions Adam Kimber QC has the power to appeal against acquittals by judge alone in murder cases, after reviewing the decision he has decided there will be no appeal.