10 Minutes with…The Honourable Hugh Fraser KC

Thank you for agreeing to speak to Hearsay for the 100th Issue.

Thanks for asking me.

Academically you performed well at High School, with aptitude for any vocation. How did you come to pursue a legal career?

At the end of grade 12 I considered a career in engineering, but I discovered that the subject “Technical Drawing” was a prerequisite. I could barely draw a straight line with a ruler, so I went with my second choice. I also may have been influenced by the fact that two siblings had already started their legal education.

You commenced practice when you were aged 23 years. Do you harbour any regrets about not choosing to commence a bar career a little later, as new admittees now tend to do?

When I met one of my earliest clients at court, she told me I was too young to be a barrister. In hindsight she was right.

Your brother, Donald Fraser KC, was a well loved member of the Bar. Did you ever appear against each other?

We tried to avoid appearing against each other, but it happened twice. In the first of the two cases, I acted for the plaintiff, a young man who collided with a council bus when he was driving his father’s expensive car. My client did not fare well under Don’s cross-examination; at one point my client burst into tears. In the council’s case, Don called passenger after passenger to corroborate the bus driver’s evidence that my client simply drove into the side of the bus. None of Don’s witnesses cried when I cross-examined. They also seemed genuinely perplexed that there could be any dispute. By the end of the evidence, I felt like crying myself. Very generously, Don only rarely reminds me of that case. I won the only other case in which we appeared against each other but Don claims to have no memory of it.

You were involved in many notable cases – as a junior and as silk – including Mabo v The State of Queensland (No 2) in the early 1990s. Can you share with us any observations or anecdotes, as counsel, in the conduct of the litigation?

My education about our indigenous peoples was typical of students of my era. What little I was taught at school and in an introductory history subject at university was either horribly wrong or misleadingly simplistic at best. I was briefed to prepare a draft of the defendant’s written submissions and appear in the High Court as one of the Solicitor General’s (Geoff Davies’) juniors. Before I was briefed, I knew nothing about native title. I recall spending about four weeks studying cases and academic writing about native title. All but a few of those cases were from overseas jurisdictions, including India, the United States, African countries, Ireland and (most influentially in the result) Canada. This was a fascinating history lesson. I won’t comment on the result, but (to quote something Ian Hanger said in unrelated litigation) Mabo No 2 was a good case to lose.

Are there any other cases that stand out for you from your time at the Bar, and why?

I remember all the cases I won.

You worked with many senior counsel. Did any, in particular, have a seminal or lasting influence on your advocacy?

I was given my first lesson in cross-examination – a very good lesson – by Margaret Wilson in my first smash and bash case, in a Magistrates Court early in 1981. It’s impracticable to mention all of the many other barristers who I think influenced my advocacy, but I certainly learnt a great deal from Geoff Davies, DF Jackson, and Paul de Jersey.

When briefed as your junior, you told me that you liked being briefed in cases in which there was some difficult legal or factual problem to solve. Is that your general disposition as a lawyer?

I’ve always enjoyed solving puzzles. The difficulty of some factual problems makes them interesting. Others are difficult only because the evidence is extensive; some of those cases can be tedious and all-consuming. Some barristers enjoy those long cases. I was not one of them. That is why I stopped accepting briefs in building and engineering trials near the end of the 1980s.

As a silk, what did you consider the role and attributes of a good junior?

The silk is often more experienced and must lead in any event, but otherwise a good junior will have the same attributes as a good silk. At the top of a long list, I would emphasise wholehearted dedication to the task, an independent mind, and the capacity to meet deadlines.

Your appointment to the Court of Appeal in 2008 was lauded by the profession. What, for you, was – or became – the attraction of sitting in the appellate jurisdiction?

By then my practice had become largely appellate. Appeals seemed to suit me better than trials. Most importantly, I knew that I could happily work with each of the judges of appeal at that time.

As a commercial lawyer, did you find criminal appeals initially challenging?

Yes. I enjoyed the challenge of working in jurisdictions in which I had not practised much. The general nature of the hearing and the judicial method does not change according to the jurisdiction, but obviously it is necessary to get up to speed with the applicable law. There are also potential traps in some of the shorthand used in the criminal jurisdiction. To mention just one of many examples in one matter, I initially might have thought that counsels’ puzzling references to a “black direction” suggested a particularly unhappy turn of events at the trial. The fact that very helpful outlines of argument are nearly always lodged well before hearings in the Court of Appeal is a distinct advantage for a new judge of appeal.

Did you find the writing of appellate judgments a contrast to advisory work as counsel?

There are substantial similarities between a barrister’s advisory work and judgment writing. The differences are more acute for a trial judge than for a judge of appeal. The most obvious difference in both cases is that, whereas counsel expresses an opinion about the likelihood of a favourable decision, the judge must make the decision. That is a heavy responsibility. Another difference is that a judge’s duty to explain the result sometimes requires more analysis, such as an explanation of why the losing party’s reasonably arguable points were rejected.

Did it sit in the front, back, or nowhere in your mind that an appellate decision which you had written, or were party to, may be overturned by the High Court?

I was always aware of the prospect of High Court challenges. Being upheld is nicer than being overturned, no matter how often we tell ourselves that appeals (except from the High Court) are inherent in our hierarchy of courts. In some cases I correctly predicted that special leave would be granted. On the other hand, in a couple of cases the High Court overturned a decision I wrote when it had not occurred to me that the case might even attract special leave, much less a successful appeal. There were other cases where I thought that the High Court might take a different view, but special leave was refused or there was no application.

Are there aspects of court advocacy in Queensland, which you observed over your time as a judge, which bear improvement?

Most professional advocacy in the Court of Appeal was done well, but I would commend the ABA’s advanced appellate advocacy course for anyone who aspires to excellence in appellate advocacy. Otherwise, I will make only one point; be succinct.

You observed in your retirement valedictory speech – as I interpreted your expressed sentiment – that you planned to go home and abide your wife Margie’s domestic instructions rather than embark upon a post-judicial legal career. Has that, largely, gone to plan?

My memory of what I said, quoting Peter Dutney, was that I plan to go home and be a slug on the allotment. That has gone to plan.

Do you miss any aspect – and if so what – of daily life as a practising lawyer, whether as barrister or judge?

In each occupation much of the work was interesting and challenging. I miss the daily interactions with high achieving and ethical colleagues in the same occupation. But I do not miss the ridiculous hours.

What are your recreational interests?

My current occupation may best be described as part time babysitter and odd job man. My wife and I also travel quite a bit. We bought a small campervan, which we have so far used only for short camping trips, but we plan some larger adventures around the country. Otherwise, I dip into a smorgasbord of hobbies, including skiing, hiking, cycling, surfing, and surf fishing. Another joy of retirement is the day time nap.

What are your views on the incursion of Artificial Intelligence into advocacy?

I don’t know much about AI, but my impression is that if advocates carefully apply their own intelligence to the use and product of the artificial variety, AI should introduce some efficiencies without reducing the quality of advocacy. In the hands of some categories of advocates who are incapable of achieving the essential quality control of AI– most obviously, querulous self-representing litigants – it seems unlikely that the use of AI will offer any real benefit. Worse, it may increase the length of already unduly lengthy arguments in cases of that kind.

Do you envisage the role of the Bar will change over time, and if so how?

Do you have any easy questions?

What is your core career advice to barristers very newly engaged in, or about to enter, practice as counsel?

Carefully select your chambers and enjoy your work.

Thanks for your contribution to the law, and for speaking with Hearsay.

It is a pleasure.