Bus conductor, shop steward, cricketer, solicitor, barrister, social justice campaigner, stirrer, judge … Being rude to a judge is not a contempt … Goodbye to Judge Bob Toner … Big send-off at Balmain Town Hall
He was one of the leading lights of the criminal bar and a stalwart of the bar association, serving as secretary and treasurer for many years.
One of the assembled remarked that he had never witnessed such a wide cross-section of the community at a service to mark the life of a departed judge. Of course, there were lawyers, judges, family and friends by the score. Also Indigenous Australians, old crims for whom Toner had acted, people from pubs and clubs, ex-politicians, the works.
Former NSW Public Solicitor Tom Kelly gave one of the eulogies with warm memories of young Toner’s time as a budding ALP politician in his law student days, with Bret Whiteley screen-printing his campaign T-shirts.
He also got involved in the anti-apartheid movement, Aboriginal rights and prison reform.
His was a rich life cut short by cancer at age 67, four months after he received the diagnosis. Read Tom Kelly’s eulogy here.
One of his celebrated skirmishes, not much mentioned last Saturday, was the case of contempt where, as a barrister, Toner allegedly shouted at Judge Lloyd-Jones.
He appeared for the GIO in a motor accident negligence case and during an adjournment indicated to the other side that he would oppose the tender on behalf of the plaintiff of an addendum to a medical report.
However, the transcript shows then when counsel for the plaintiff sought leave to tender the report Toner said, “no objection”.
At the appeal from his conviction for contempt Toner’s instructing solicitor in an affidavit said:
“I do not believe the appellant lost control or addressed words to Judge Lloyd-Jones in an arrogant and truculent manner.”
Lloyd-Jones associate in another affidavit submitted:
“I have never heard any other counsel raise their voice to the same level as Mr Toner. At the time that Mr Toner shouted at his honour I observed that Mr Toner’s face was completely red.
At no time … did I hear his honour speak in other than his normal tone of voice.”
The court reporter also offered another version of events, saying that it was unclear whether Toner has said “no objection”.
“… although he raised his voice, I would not have described the level of his voice as shouting. I have heard other counsel address judges with their voices raised to the same level as that of Mr Toner … I did not interpret the fact that Mr Toner raised his voice as an attempt to insult his honour or the dignity of the court. However, I can understand that a judge might think that the level of his voice was inappropriate in court proceedings.”
None of the deponents were cross-examined.
Toner successfully argued that he had not been afforded procedural protections by the judge, who did not give sufficient reasons for his conviction or the order for any punishment.
The court of appeal said that Lloyd-Jones failed to define the alleged contempt, had not asked the appellant to make his defence and without further ado had found him guilty of the charge.
The attorney general argued that Toner had “lowered the authority of the judge and his court”.
Kirby P, Clarke JA and Hope AJA said:
” … mere acts of rudeness, discourtesy or even extreme discourtesy on the part of legal representatives will not of itself constitute contempt.”
Indeed, Lloyd-Jones should have handled the situation differently. There is a “duty in judicial officers to listen patiently and carefully and to retain self-control at all times”.
Appeal allowed.