Ten questions with Court of Appeal Justice Raynor Asher

Last month, ADLS was pleased to present the inaugural “Ten Questions with” Leadership Lunch, with Court of Appeal Justice Raynor Asher, held at the offices of our event sponsor, Bell Gully.

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These lunches are a natural extension of the Lawyers’ Lunches ADLS hosts around the country to provide an opportunity for lawyers to get together to discuss current issues within the legal profession as well as to foster collegiality.

However, the addition of the “Ten Questions with” lunch with a leader in the profession was introduced to remind newly suited lawyers – in the wake of the recent adverse publicity surrounding the legal profession – that there is so much to be proud of in our profession. The concept is to have a special guest at each lunch, with one newly suited lawyer asking ten questions of the special guest in an interview style which is more intimate than other events we hold.

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ADLS Newly Suited Convenor Ellen Snedden relished the opportunity to ask ten questions of Justice Asher, and his answers did not disappoint:

1. What is the best piece of advice that you have ever received as a lawyer that you would pass on to the newly suited?

My early mentor, Don Dugdale, told me to be bold, brave and resolute. To have the courage to pursue causes even if difficult or unpopular. Most of us can be brave from time to time, but to be a great lawyer you should show consistent courage.

2. Did you always want to become a judge?

Not really, as I did not really appreciate what a judge was until I got to law school and started reading judgments. But I always wanted to be a lawyer. I was a great reader and a great dreamer as a kid. I loved to argue and try to maintain untenable – even absurd – positions.

When I started reading judgments in law school, I thought that they were like wizards really, producing these statements about the law. Little did I know.

When I became a barrister, a judge became an object to explain to, to cajole, and above all to persuade. For a long time, I could not imagine that I would join their ranks, but then suddenly it was the right – the only – thing to do.

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3. What would you do if you weren’t a lawyer/ judge?

I would have quite liked to be a musician, playing folk and Americana music in pubs and cosy venues. But in music you cannot have a first-rate career with a third-rate talent.

I also liked the idea of being a farmer – I quite like the outdoors and the idea of being self-employed, but I couldn’t picture myself having the mental fortitude to put down a cow, or having the competence to erect a fence.

4. How did you find the transition from practising as a barrister to a judge? Did you encounter any difficulties?

I was in the fortunate position of having a very natural transition from being a senior barrister to a judge. I spent my professional life appearing before judges, and some were good friends. So, from that lucky position (that not every new appointee is in), I didn’t find it too hard and knew what I faced.

I did find jury trials and sentencings hard though. I did not like to be in the position where I was obliged (on occasion) to put people who did not really have a criminal disposition into prison.

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What is different is that, as a lawyer, when the trial is done, you can relax. But as a judge, the hard work is just beginning. However, it is nice before a trial as a judge, as you are not in crisis preparation time as you are as a lawyer, but rather reading through the papers without any pressure – except to try to properly understand the issues.

5. How do you achieve a good work/life balance, and do you have any tips on how a newly suited lawyer can achieve this?

It is trite to say that balance is everything. As a court lawyer, you should never be triumphant in your victories or despondent in your losses. It is very easy to fail as a lawyer if you cannot learn to lose with some equanimity, and win with some grace.

Needless to say, your family and your relationships should always be your priority. Non-negotiable.

Also, I firmly believe in an outdoors exercise regime to keep yourself physically and mentally fit. In court, you are absorbed in paper and surrounded by walls. The outdoors is good for body and soul. I do three cardio workouts a week; two cycling sessions and one run. I also like skiing, windsurfing, and a good tramp from time to time.

I like to do my bike ride or run on a familiar route as this allows your brain to go into neutral. Your thoughts will naturally turn to something important in your personal or professional life, and you can think about matters you would otherwise neglect. I find you can gain lateral insights because your brain is relaxed.

I also love music – you should listen to music which moves you and leaves a lump in your throat as much as possible.

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6. Do you have any other specialisms other than the law?

Skiing (as mentioned already) and music are absolute passions. Fishing is another favourite pastime and I am looking forward to learning to fly fish, as I would quite like to catch and release some trout around my beloved Ruapehu.

Reading – I am an assiduous and passionate reader. I read every night before bed. It is my solace.

7. What is the hardest part of being a judge?

The hardest thing about being a judge is having to do things you don’t want to do – to be forced by the law to a result, a consequence, an order that you don’t think is right.

This doesn’t happen often I am pleased to say, and it is usually in the sentencing arena. Judges are constrained by the law and are bound to do what Parliament tells them. But in my experience, that does not always fit the justice of the individual case when you are dealing with addicts or other grossly disadvantaged people.

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8. Tell us something that not many people know about you.

Not many people know that Justice Matthew Muir and I share custody of a 1959 XK150 Jaguar, formerly owned by the legendary Richard Craddock QC. It is rumoured that Matthew’s associate resolves any disputes over access; so far I can report that we are getting on okay.

I am also the proud master of 165 rose bushes. I like the fragrance of the blooms so much that, when I am sitting in Wellington, I make sure to cut some stems to take down with me to have on my desk.

9. Is there a case(s) that you vividly recall and why?

I have never been in a famous life-changing case – say like the Springbok tour case. Those cases are truly rare. However, I will give examples of a few cases that have stuck with me.

I enjoyed a case where I acted for a ski operator in 1996/1997 and Mount Ruapehu exploded and put ash all over the snow, and the ski field couldn’t operate.

The insurers refused cover, saying the insurance did not include damage to snow. This had most serious implications for the future of the operator. We came up with the novel argument that ash on snow in this context was damage to property – snow can be shaped, moved and wrecked as a usable substance. I am pleased to report that snow was established as an insurable commodity.

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I also had a Privy Council case where the issue was the apparently trivial meaning of four words in a ferry timetable. It stated “crossings every 10 minutes.” Now, was that crossings from one side every ten minutes with one ferry in operation, or crossings from each side every ten minutes with two ferries in operation? We lost in the High Court and won in the Court of Appeal. It seemed odd arguing about such banal words before their Lordships in London. But they gave it careful consideration, and provided a leading judgment on the interpretation of public documents.

I also had a memorable criminal case where I acted for a woman who owned a childcare centre and was accused of abusing children in her care. A disgruntled employee had brought the allegations and had convinced some parents to join in. It was ultimately shown that the allegations were entirely false. The greatest satisfaction a court lawyer can have is to achieve exoneration of a person wrongly accused.

Acting as amicus curiae in cases involving forced life-saving medical procedures for terminally ill or injured children has also been a great privilege.

10. What do you enjoy most about being a lawyer and/or judge?

I love the variety and the opportunity to always be learning new things. Not only is the law constantly developing and changing and a real kaleidoscope, but you also learn a lot about the subject matter of the cases. You will be taken to all sorts of different fields of human endeavour. It is quite exciting to have that in your job, and I believe it is why lawyers and judges last so long in their careers.

But what I have truly loved about being a lawyer is involvement in my community, which I feel even more so as a judge.

There is a power and a glory in the law and how it is capable of shaping our society, and making it better. Think how you, as newly suited lawyers, can use the law to do good and to be a good person. I admit I did not sufficiently think that way as a newly suited lawyer myself, but looking back I wish I had involved myself more – I am trying to make up for that. 

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The ADLS Newly Suited Committee would like to thank Justice Asher for sharing the insights and wisdom he has gleaned from his career as a lawyer, barrister and judge. Justice Asher was both charming and truly inspiring.

Feedback from the newly suited attendees indicated that they really enjoyed the interview-style event as compared to a more traditional “speech”, with comments such as:

  • “It was good to be reminded that judges are human too.”
  • “Absolutely inspiring.”
  • “Nice networking and interesting insight into the Judge’s life and hearing his perspective on things.”

ADLS would also like to thank Bell Gully for sponsoring the event – providing a beautiful lunch and outstanding views as a backdrop for the interview.

ADLS looks forward to the next event in the “Ten Questions with” Leadership Lunch series early in 2019 – look out for further details in LawNews or at adls.org.nz.

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