New Zealand Law Society - Brian McClelland QC, 1920 – 1993

Brian McClelland QC, 1920 – 1993

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To countless clients, long unremembered, he was Brian – or just occasionally, in a rush of invariably redundant affection, Briany (Briny?) or Mac. To scores of judges of varying ability and degrees of self-importance, he was Mr McClelland – but always said with an inflection that defined the relationship. To staff – secretaries, law clerks and other factotums, he was Mr Mac. To one dusky litigant (both colourful and coloured) from the Bahamas, over here to lay claim to an itinerant child, he was (somewhat disconcertingly I recall ) Mr QC, as in “I hear yo talkin’ Mistah Kewcee” – in a lyrical Caribbean patois.

But to his cronies he was usually and most affectionately known as Clicks. The origin of this dandy little nickname is as much shrouded in the myths of antiquity as the Arthurian legend. The source that was vouchsafed me many years ago by his nephew, was said to repose in the onomatopoeic pronunciation of the first few consonants of his surname.

I must say however that I favour the rather more romantic and, as it happens, appropriate tale that it derived from musical roots: the sound of a drummer playing the rims.

For Clicks loved jazz. He still has a Stephane Grappelli album of mine. I say “has” deliberately. He had it for so long I think he’s probably taken it with him. He loved the clear, uncluttered tonal purity of Maxine Sullivan as she celebrated Harold Arlen’s ballads, just as much as he adored Dixie. He had played the drums in a jazz band when younger, so you can see why the name had just the right association. It was his and, in the end, it was him.

This is my opportunity to say a few words about my friend. He was a man whose presence enriched me and thus whose parting will diminish me.

He was a man of contrasts and of moods. The refractive mirror that he held up to life projected many images. Two however stand out most sharply: the maverick lawyer refusing to bow to convention’s stern face; and the provider of a hell of a lot of bloody good laughs.

Inevitably I can say, as I suspect few of us can about even fewer people – I shall not look upon his like again.

Brian McClelland was born 73 years ago in London. His family moved here when he was only five. Thus began what was one of the many delicious and always slightly incorrigible paradoxes of his scampish life. Brian was an inveterate pom basher. I certainly don’t mean that in any reprehensible way, but those of us who knew him will not easily forget the full force of his disapproval. Because of this (or perhaps despite it), his ethnic origins remained for many years a complete mystery; penetrated eventually only by chance. Thereafter, the vituperation seemed to evaporate – for a while anyway.

At the age of 12 he won a scholarship to Christ’s College, and continued his education at Canterbury College with an LLB. Before he could embark on his chosen career the war intervened and, as with so many of his generation, he took an enforced break from domestic routine and entered service. He joined the navy, starting off as a seaman in the Mediterranean fleet, and completing his time as a lieutenant on HMS Indefatigable in the Pacific.

I once asked him why he’d chosen the senior service when so many of his friends had opted for a more conventional route in the infantry. I supposed I’d half expected an answer based on idealistic notions of sea-faring heroes, armadas and poems by John Masefield. Fat chance. In fact, his response was to reveal to me for the first time that curiously endearing mixture of Irish sentimentality and Anglo Saxon expedience that characterised so much of his life. “Because you can’t see the poor bastards you’re shooting at.”

After being demobbed, he came back home to Christchurch and started working in a number of firms before ending up in the partnership to which he was to devote many of his most fertile years – Wynn Williams. It was while in this firm that Brian was to fall under the spell of the man who exerted such a profound influence on the fledgling lawyer – Terence Gresson. For as long as I can remember Brian kept a photograph of the late judge on his desk. He often maintained that Terence was the wisest, the cleverest, the wittiest and … well … simply the best cross-examiner he’d ever had the good fortune to hear – and he’d heard the best. For example, he took great delight in telling any of us who could listen that he’d toddled along to the Law Courts in the Strand while on leave during the war where he’d sat and listened to the legendary Norman Birkett hold a court in his thrall. I think it gave him a particular heretical pleasure to report back to eager antipodean ears that the fabled golden-voiced advocate “wasn’t a patch on CST” (CS Thomas – then something of a local icon). It frankly didn’t matter whether the raffish colonial judgment was right or not. What counted was that Brian’s typically persuasive tones could reassure us that we had the wherewithal to foot it with the big boys. Hell no, not just the big boys – the gods. Men about whom books were written were in one swift and effective sally brought crashing down to our level. Hereford Street could mix it with Lincolns Inn and take them out on a TKO. Brian quickly learned the power of cheeky iconoclasm when an underdog needed a champion. A power he later used so potently with juries while giving many an underdog his day.

In was in 1954, the last year of Terence Gresson’s practice before his judicial appointment, that Brian was to assist his mentor in what was certainly to be the most notorious case of his career – the Hulme Parker murder trial. The impression this cause celebre made on the young advocate was permanent. Typically, the anecdotes that he’d squirreled away (for countless rainy days while waiting for propitious juries to return) were about the people involved, rather than the events.

As I was to discover over many years, in the theatre of the law Brian was much more interested in the cast than the scenery (or, some would say, the script). I have listened on nameless days to that pungent, two-fisted delivery of his capturing for a moment and yet, it often seemed, indefinitely – Juliet Hulme’s half-crazed smile; Gresson’s urbanity; Medlicott’s resolve; Haslam’s delivery and – most trenchantly of all – the Judge’s infirmity of spirit. If Brian could have singled out one inauspicious moment in New Zealand’s chequered tapestry of legal history, it arose in this trial. No it was not the refusal of the judge to leave the defence of insanity to the jury; nor was it the use to which the Crown put the girls’ diaries with their many ambiguous sexual references. No, the one event that Brian forever maintained caused a permanent stain on the otherwise pristine fabric of the common law was the decision of Mr Justice FB Adams to bring the jury back so that he could address them and send them out on a Saturday morning. Now bear in mind that this wasn’t just any old Saturday. It was the Saturday on which Canterbury were playing Waikato for the Ranfurly Shield at Lancaster Park. And this was 1954 remember, with an all male jury. Brian surmised, and with no little justification when you think of it, that it was this that guaranteed the girls being found guilty.

Whether he was right or not didn’t, as usual, much matter. What mattered, as always with him, was that the tale and his telling of it carried its own conviction.

After Terence Gresson’s elevation, Brian was the senior common law partner in a senior common law firm. In those happy days before the Accident Compensation Act throttled the human interest out of litigation, he had a practice built largely on the shattered patellas and torn ligaments of an entire generation of Canterbury labourers. He had what was then known as a plaintiff’s practice – one in which his considerable personal gifts caused him to be worshipped and revered by every trade union secretary and injured worker who had cause to use them. In addition, his forensic skills were equally and forcefully employed in the defence of a large number of pretty solid villains.

During the 1950s, 60s and 70s in particular, any criminal jury session in the Supreme Court was bound to feature McClelland’s well-etched face among the combatants. Those of us who were privileged enough to see it will never forget the sight of those two penetrating, bulbous eyes staring out (from under Gresson’s wig) in an almost unblinking gaze at some hapless police witness, pouring scorn and derision on what was in all other respects perfectly respectable testimony. If there was a crack in the prosecution case, by the time Brian had circled and then attacked, it had grown in size to a yawning gap through which his client would happily climb.

In both criminal and civil jury trials Brian, at the height of his abundant powers, had few if any peers. As a barrister, though, he was peculiarly a New Zealand advocate. If that sounds a little too much like stating the obvious, then perhaps a short explanation is called for.

To an audience of twelve average kiwi punters, with their arable mix of humours, tempers and prejudices, Brian had a quite uncanny instinct for the mot juste. He could laugh and cry with them. He knew their heroes and their villains; he read their newspapers, watched their TV programmes, followed their rugby teams and re-told their jokes. But most of all, when he pulled himself out of that chair, took a glance at the half page of illegibly scribbled notes and launched into that familiar routine of impressionistic oratory, well larded with perfectly balanced phrases and telling quips, a kind of magic hung in the air. In full flight he had the irresistible quality of a driving tenor sax solo. Under the power of his forensic alchemy, the safest factories and machines became veritable death-traps; the straightest roads suddenly developed unexpected and dangerous curves; and the most patently honest witness was inevitably found to be lying his head off.

But it was in cross-examination, today a sadly neglected art, that Brian’s gifts reached their full flower. He could savage a stroppy witness when necessary, but he recognised that as being probably the least sophisticated weapon in his armoury. The subtlety of his timing was his greatest prize. There is a moment in the Oscar Peterson version of Witchcraft – between the introduction and the opening off-beat of the melody – when there is a pause of pregnant anticipation. It was just such a feeling that often accompanied the second or two before Brian struck. The urgent sense of expectation was truly palpable.

The inevitable demise of jury trials after the abolition of personal injury claims came not long after Brian retired from Wynn Williams following an unexpected and abrupt dissolution. He was a few years in another partnership before, in 1977, commencing practice as a barrister, having taken silk at the end of the previous year. He was to remain sharing chambers with a group of friends right up until just a few years before he died.

For the record, I should complete his very full career details. He was in turn a President of the Canterbury District Law Society; a Vice-President of the New Zealand Law Society and a founder member of LAWASIA. He was also a member of the Torts and General Law Reform Committee, the Legal Aid Appeal Authority, the McKay Committee on Defamation, and an original member of the Crown Prosecution Panel in 1968. He was also for very many years on the Christ’s College Board of Governors. I remember the pleasure he had when appointed to the Board of BP in the mid-1970s; and the sheer delight when in 1987 he was decorated with a CBE for services to New Zealand (“What the bloody hell have I ever done for New Zealand?”).

It is as an advocate though that he will most lastingly be remembered. He was a performer and not an analyst – at his best with his back to the wall or, to use one of his own expressions, with hardly a feather to fly with. At the risk, I know, of over-egging the pudding, I would have to say that of all the qualities that one could admire him for, his unbridled courage would have to rank right up at the top. Brian, in whatever he did for a client, never for a second allowed his personal doubts or fears to intrude. Indeed, unless you knew him well, you wouldn’t know that he had any. The humblest, the weakest, the most disadvantaged, would all find their champion in Brian. A colleague of his once paid him what I always felt was the ultimate compliment: “There are many good lawyers in this city, but if I was in trouble I’d always go to McClelland”.

He had the gift of friendship. He felt Gordon Leggat’s passing enormously, I know. He and Tubb were conspiratorily close. The two of them, along with Peter Mahon and a couple of others, formed a cabal of the Christchurch Bar for a good few years. Indeed, to many, they were the Christchurch Bar.

This friendship always enabled him to be available at any time to give advice and encouragement to any who might seek it. He would not give it unless asked for though. For a man of such trenchant and outspoken views, he could be almost painfully tactful. But if the intended recipient were not within earshot, the advice might be given nonetheless – albeit in somewhat less restrained terms. Brian’s extempore toasts to absent friends could be devastatingly acute.

But of all his friendships, the most profound and the most durable was that with his devoted wife Phyl. At Brian’s funeral Bob Lowe, in delivering a very eloquent and moving eulogy, described the sudden end to their relationship in a phrase of such poignancy and aptness that it would be impossible to better it. He told us that none of us could hope to appreciate the “sense of amputation” that Phyl would now feel. For as long as I can remember they existed as one – each perfectly complementing the other. To a host of visitors to their Memorial Avenue home – always beautifully maintained and furnished – their hospitality was as legendary as their love for each other. It was always a joy to be in their company.

With Phyl and the two children, Matt and Brigid, we all grieve.

We each of us knew a little bit of Brian – about as much as he wanted us to. We will all have our favourite Brian story – and the great thing is that the constant telling and retelling of these will more vividly enshrine his memory than any tiresome panegyric could hope to. Suffice to say that a cricket or rugby test won’t be the same without the benefit of his typically abrasive post-match commentary – given with all the authority of a disinterested Canterbury bystander. Convivial gatherings of lawyers will be the poorer for the absence of his unique and always entertaining observations; and (to borrow a comment from his son Matt), there will be a number of restaurants in Sydney whose turnover will now exhibit a marked decline.

I will miss him enormously, but can at least retain the happy prospect of celebrating his memory for as many years as I care to. He has gone, but only to the extent that we choose to let him, for he has “…slipped the surly bonds of earth/ And danced the skies on laughter-silvered wings”.

To which he would no doubt reply – “That’s bloody balls McVeigh”.

This obituary was published in LawTalk 396, 12 July 1993, page 9.

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