Eulogy: Sir Clifford Grant

(Funeral Service: 21st February 2014)

Clifford was in a hurry to be born into this world. He was born two months early. His twin brother, Philip, only lasted a few months. Seven months gestation may have left Clifford with weak lungs. The lungs are not completely formed after seven months in the foetus. As a child Clifford only ate eggs and drank milk.

He had an older sister, Valerie, who climbed high in the British public service, and a brother three years younger than himself, Geoffrey, who became a solicitor. The family lived in Wallasey, Cheshire. Wallasey was the first training school for guide dogs for the blind in Britain, and was first set up in 1931 when Clifford was two years old.

Both parents had some Polish and Jewish blood, but had long been settled in England. His father was a doctor.

When the war broke out in 1939, Clifford was about 10, and it was thought the Germans would invade, so the father arranged for the family to be evacuated to the United States. The father, whose ancestors had suffered pogroms, stitched up one large uncut diamond in the teddy bear which Clifford, now about 10, was to carry. He took good care of the teddy bear and its contents though two other uncut diamonds entrusted to the purser on board, did not survive the sea journey through the Atlantic and the menacing U boats. The Purser later explained the absence of one of the two diamonds he carried, that it “just fell overboard”.

Clifford had some schooling in Mount Clair, United States, and then at a private school in Barbados, and the family returned to England in the 1940s during the war. He went to high school in Liverpool and then studied law at Liverpool University. He explained that he decided upon law because “I’ve always had a strong feeling about justice and injustice and it seemed the right thing to do”. He had to commute each day both to the high school and to Liverpool University, by the Mersey Ferry in all seasons, and this gave him something of an aversion to the British cold.

He took an Honours Degree in Law, was then articled for a time to his uncle’s law firm, and afterwards joined a firm at Eltham in London. In about 1950 he married, and in 1957 had a daughter, Shelley, who lives in England. That marriage did not last.

In 1958 he was appointed to the Overseas Judicial Service, and arrived in Kenya as a Magistrate. He went alone. He did his initial training in Nairobi, and then was assigned to Mombasa, in part an island on the Kenyan Coast, with a beautiful old harbour, Kilindini (which in Swahili means “deep”), into which at high tide the turquoise waves flow. It was to Mombasa that Karen Ferguson, a Scot from Edinburgh, the oldest of seven children, came in 1958 with only 5 pounds in her pocket. Trained as a nurse, she had got herself a job at the Mombasa Hospital. The nurses’ quarters overlooked the old harbour where dhow boats came in laden with Persian carpets.

Some mutual friends wanted to arrange match making between the two and so arranged for Karen to meet Clifford, explaining that he was the local magistrate. Thinking he would probably be fat, portly and at least 40, Karen was reluctant to meet him.

But she remembers walking into the room at the nursing quarters, which had a large veranda overlooking the dhows in the harbour. Clifford was there, twenty-nine, slim and with dark brown eyes, she remembers. Clifford remembers she was wearing a red cheongsam dress with a high neckline.

In the Forsythe saga, one of Galsworthy’s characters says “in life people often marry their second choice”. In Clifford’s case, it took a second marriage for him to find his first choice as partner. As for Karen, Clifford was her first and only partner. In 1962 on home leave, they were married.

Clifford always had a passion for sports cars. So much so he once smashed a red sports car when he drove it out of the showroom to test-drive it. In Mombasa he drove an Austin Healey, with a low carriage over the unsealed Kenyan roads. Clifford propped up the undercarriage with sandalwood and, as the sandalwood burnt, it exuded a glorious flagrant smell which Karen thought was coming from the fires of the African villages.

Around 1962, Clifford and Karen were transferred to Kisumu on the shores of Lake Victoria. The Austin Healey was now replaced by a Sunbeam Rapier.

Their house was beside Lake Victoria, and hippos came out every night to feed on the grass verge. Impala antelopes locked horns in mating season on the garden. Clifford would drive down the dusty roads. There was tribal warfare there between the Luo and other tribes. Often the rival tribesmen lobbed spears over the road, indifferent to the solemn passage of the resident Magistrate in his Sunbeam Rapier. Karen worked at the hospital and can remember one tribesman presenting himself at the hospital with a panga through the head, yet smiling broadly.

In 1963 Clifford and Karen were assigned by the Overseas Judicial Service to Hong Kong. First, he was in the Crown Solicitor’s Office there where he met Ron Cannon. A vacancy for the position of Principal Magistrate arose, and Clifford applied and was appointed: a position he was well suited to. Later he was invited by the then Colonial Chief Justice, Sir Denis Roberts in Hong Kong, to go to Fiji.

Clifford and Karen took off in a cargo boat and hit the tail end of a hurricane on the way to Suva. Clifford was very seasick and Karen had to restrain luggage from sliding across the cabin, only to be carried herself backwards and forwards, much to Clifford’s amusement.

Arriving in Suva, they walked up from the Harbour. Hibiscus and frangipani fringed the roadside. They took immediately to the smells, the colour, and the people. Clifford went to Nausori as the Magistrate, and then transferred to Lautoka, and later was posted again to Suva. He became Senior Magistrate and then Chief Magistrate, and somewhat reluctantly, a Judge of the High (Supreme) Court. He liked being Chief Magistrate but when Sir John Nimmo, who had been a Federal Court Judge in Melbourne, resigned as Chief Justice of Fiji in 1974, Clifford was persuaded to take his place. Clifford’s speciality had always been in the criminal law and shortly after he prepared a detailed report on the Fiji Penal Code.

It is usually the area of criminal law enforcement which opens up corruption in government. As Chief Justice, he was Chairman of the Judicial and Legal Services Commission. He made two shrewd appointments: of Kulen Ratneser as Director of Public Prosecution, and Magistrate Kenneth Moore as senior Magistrate who was later to join him in Perth. I came to Fiji as a prosecutor and therefore came to know Clifford through Kulen Ratneser.

Kulen Ratneser knew from his days in practice in his native Sri Lanka, and the rule of Mrs Banderanaika, what happens when corruption and interference set in to overwhelm an independent judiciary.

Kulen and Clifford were very close. In those days Kulen had to nurture many enthusiastic but callow prosecutors. They included Tony Gates, the present Chief Justice of Fiji, and Daniel Fatiaki, his predecessor as Chief Justice, who was ousted by Colonel Bainimarama, the present ruler in Fiji. Word often came through to our office after Clifford and Kulen had conferred, usually the day before the criminal sessions opened, that a carelessly drafted indictment needed amendment. Clifford did not like to see the guilty acquitted on a technicality.

However, running an efficient judiciary in combination with an enthusiastic law enforcement arm, in a country where longstanding government had become increasingly authoritarian, was a recipe for confrontation.

At that time the dominant force in Fijian politics was Ratu Sir Kamisese Mara who had been Prime Minister for ten years. In 1977 Clifford Grant, who had been knighted by this time as Sir Clifford, advised the Governor General, Ratu Sir George Cakobau about the appropriate appointment of the governing party after Ratu Mara’s party was unable to command an outright electoral majority. The constitutional crisis which ensued was not unlike that which faced Sir John Kerr, when he took advice from Chief Justice Barwick in 1975.

As Chief Justice, Sir Clifford acted as Governor General in the absence of the Governor General. Sir Clifford reminded Ratu Mara about the protocol requirement under the constitution of the Governor General taking precedence on ceremonial occasions over the Prime Minister.

These matters did not endear Sir Clifford to Ratu Mara, who by 1980 was presiding over a precarious government.

The conflict was compounded when the energetic and brave Director of Public Prosecutions brought a case, which revealed corruption in Ratu Mara’s cabinet. Sir Clifford presided at the initial hearing and refused an adjournment to the defendants represented by Tom Hughes QC, at that time probably the best known Australian barrister, who had been Attorney General in Harold Holt’s Government. Sir Clifford was not impressed by Tom Hughes QC’s argument for an adjournment declaring it “futile”. The trial proceeded and convictions secured much to the Government’s embarrassment.

Therefore Ratu Mara wanted to engineer Clifford out of office so he could contend with a more pliable successor but the Governor General, and not the Prime Minister, was the appointing authority for the Chief Justice’s position.

The Prime Minister therefore used the familiar clarion call “localisation” to incite the local profession and media to localise the Chief Justice’s position. Sir Clifford considered it would be wrong for a Chief Justice to become a figure of controversy and the Judiciary would be diminished in status if he was perceived to be clinging to office. His resignation was very reluctantly accepted by the Governor General, Ratu George Cakobau, with whom he had a warm friendship.

When he got to Nadi Airport, he was asked if he had any parting words for the media and the assembled throng. He cryptically said: “I quote you the Emperor Tiberius” and no more. He flew out to start a new life in Western Australia. He had, however, supplied one of the Fiji newspapers, which had supported him, during the constitutional crisis, with the words of Emperor Tiberius but not given the words to the rival newspaper which had supported the Prime Minister’s machinations.

In Fiji he had a Rover 3ltr 3X. Now in Perth, where he arrived in 1980, he had exchanged it for a Nissan 300 ZX and then a Group A Brock Commodore.

Many today will have known him and worked with him when he was Chief Magistrate. He always said that he liked Petty Sessions work because it kept him in touch with people. He said it was where over 90% of litigation is carried out. He was able to apply the criminal law he knew so well. For a man so intellectual, I suppose his interest in criminal law was because it touched upon the liberty of the citizen and the resolution of the most critical issues involving freedom, life and death; and perhaps also the theatre of the criminal trial attracted him. Above all petty sessions work touched his humanity. Geoff Church, who looked after Karen and Clifford’s accounting affairs, told me he once said saw Sir Clifford in Court fine some “hobo” for being drunk on premises $20. The hobo then said he needed money to get back to Maddington. Sir Clifford then gave him $25 for the fare.

About six years ago, Raoul Cywicki and I decided to set up a Chambers. Various names were discussed as our patron, and Raoul and I favoured Sir Clifford Grant. Perhaps Raoul wanted Sir Clifford because he had Polish blood in his veins, perhaps because both their fathers were doctors, or simply because both had a passion about their compatriot Chopin.

Our Chambers numbers have now risen to eight, and Lady Grant will have to take Clifford’s seat at our lunches.

I believe it is a good thing for Chambers to adopt a member of the Bench as patron of Chambers rather than simply a barrister as is done in England. Particularly so where the patron is an exemplar as Clifford has been for my colleagues and I. He climbed to high office without compromising his constitutional or legal principles. He appeared to be walking backwards into precarious high office to the strains of his favourite composers, Sebelius, Chopin, Beethoven and Mahler. He had a wide interest in literature, evolutionary biology and spirituality though not himself deeply religious. He admired the nineteenth century liberal writings of Alexandr Hertzen and his modern day admirer Isaiah Berlin. He subscribed to the New York Review, the Times Literary Supplement, and London Review of Books. Cuttings came from these journals and from other sources to members of Chambers. I have here a letter to Raoul Cywicki just before Christmas, when the pulmonary fibrosis triggered by a bad fall last year required him to be on oxygen. He still remembered to convey his best wishes to all members of Chambers. Many magistrates remember him with affection and it is good to have the Chief Magistrate here today.

Amongst his 800 books was one on Baudelaire who spoke of “the divine Grace of Cosmopolitism which so few men possess completely”. Clifford had that grace. It was evident both in and outside a Court room. He was courteous but firm. He had the ability to lay his mind alongside that of the advocate, carefully absorb the submission, and then politely lay bare any deficiencies.

I happened to stumble upon Baudelaire’s poem “Flowers of Evil” written about death, when viewing that formidable range of reading on his bookshelf. One verse reads:

“Death can console, and death can recreate:

Life’s hope and goal, which as strong liquors might

Arouse our courage and intoxicate,

And give us heart to walk until the night”.

As we all walk “until the night”

I think again of the words of the Emperor Tiberius which Sir Clifford bestowed upon the favoured newspaper at Nadi Airport in 1981, as being his particular credo:

“Enough and more than enough will they render to my memory.

If they believe me worthy of my ancestors;

Watchful of your interests, steadfast in danger,

Undaunted by the enmities encountered in high office,

These are the temples I would erect in your hearts;

These are the fair images, and as such they shall endure”.