A High Court judge was so appalled by a colleague's "fundamentally flawed and unjust" conduct that she has asked for all judges who hear cases involving allegations of serious sexual assault to receive training.

Ms Justice Russell announced her request as she overturned family judge HHJ Tolson's "unsafe and wrong" ruling.

Last year HHJ Tolson found against a young woman, 'D', in child custody proceedings brought by her partner, 'R'. The case turned on D's claims that R had raped and abused her.

R applied for the child arrangements order after D fled to a refuge with their child in 2018, following a five year relationship which began when she was 17 and he was 23. Over the course of their relationship D and others made multiple complaints to the police that R was aggressive and abusive towards her and that he raped her on two occasions, although the CPS did not pursue charges.

During the appeal, it was disclosed that R had convictions for theft, common assault, criminal damage, resisting arrest, and battery and criminal damage involving a former partner, and had been subject to numerous police call outs for alleged domestic abuse of two previous partners. His own mother, brother and aunt had also all complained to the police about his violent and abusive behaviour.

At the hearing, D was classified as a vulnerable witness and applied for privacy screens to assist her in giving evidence. But HHJ Tolson took "the inexplicable step", said Ms Justice Russell, of ordering D to give evidence in public from the row of seats where counsel sat.

Referring to the "feng shui" of the court room, HHJ Tolson then ordered that R should be able to give evidence from counsel's row as well because it "created some kind of balance". As a result, R was able to take advice from his McKenzie friend while he was being cross-examined, which was an advantage denied to D.

HHJ Tolson's decision breached procedure and caused D anxiety, but it also meant that he "actually did not hear significant parts" of D's testimony, said Ms Justice Russell. "To go on, as this judge did, to use it as one of the reasons he questioned her evidence is aberrant", she said. 

HHJ Tolson's judgment was "flawed for a multiplicity of reasons", she said. At one point he mused that D appeared to be "of a highly anxious, it might be said, neurotic, disposition", without seeking any expert evidence to justify his assessment.

He also appeared unable to recognise evidence of abuse. He classed threatening texts sent by R such as, "If you don't shut up I will stick my cock up your ass", as "sexting", and dismissed an incident where R pinned D against a wall as no more than a sign "that the relationship had its difficulties".

He also concluded that any abuse had long since stopped, which Ms Justice Russel said was "wholly misconstrued", since "the most obvious reason there were no further incidents or complaints was that [D] had fled the family home", and R didn't know where she was.


din

HHJ Tolson


Ms Justice Russell said HHJ Tolson cut short D's counsel's closing submissions and repeatedly interrupted her, creating a "real risk of the appearance of a partisan approach". The impression of bias was compounded when he subsequently ordered an investigation into D's ability to care for her child, even though no concerns were raised at trial and there was no evidence to support his direction.

But Ms Justice Russell appeared most astonished by HHJ Tolson's understanding of abuse and rape. To describe his view as "out-dated" was "euphemistic", she said. "It is clear that the judge's approach towards the issue of consent is manifestly at odds with current jurisprudence, concomitant sexual behaviour, and what is currently acceptable socio-sexual conduct".

HHJ Tolson had described how D's consent was "only removed during intercourse" when she told R to stop. R ignored her, but, said HHJ Tolson, "this is a mother who very often, and for all I know, always, found that she had difficulties in taking physical enjoyment from sex". 

He said he was concerned that D "did nothing physically to stop the father", even though she was "not pinned down on this occasion, but could easily, physically, have made life harder for the father”.

"Following the event, as I have already said, the mother took no immediate action to report the matter to the police, or indeed to anyone else", he added. 

HHJ Tolson complained that D did not fight back during the second alleged rape, either. "Here, my difficulty with the mother's account centres on the removal of her pyjama bottoms", he said.

"I do not see why the mother could not, should not, have made life difficult for the father in the circumstances in which she found herself by preventing the removal of the pyjama bottoms. There is no evidence of any kind that a struggle pursued."

Ms Justice Russell said, "This is a senior judge, a Designated Family Judge, a leadership judge in the Family Court, expressing a view that, in his judgment, it is not only permissible but also acceptable for penetration to continue after the complainant has said no, but also that a complainant must and should physically resist penetration, in order to establish a lack of consent".

Ordering a retrial, she said "I have discussed this with The President of the Family Division, and he is going to make a formal request to the Judicial College for those judges who may hear cases involving allegations of serious sexual assault in family proceedings to be given training based on that which is already provided to criminal judges".

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Comments

Warren 24 January 20 08:54

Good God.  There really does need to be a non-partisan way of removing judges like this.  A lack of training is very clearly not the issue - the issue is obvious fundamental inability to do the job properly. 

Jem 24 January 20 09:23

I've read a number of reports on this and each time I feel sick. This is absolutely disgraceful behaviour by Tolson - I'm not giving him his title because in this instance he is completely the opposite of honourable.

Hey Nonny Nonny 24 January 20 09:58

Incredible, barely believable. Thank goodness there is a right to appeal, although that's rarely as satisfying as getting it right in the first place. 

Alice 24 January 20 12:35

It's not correct to say that the Judge made the alleged victim give evidence in public. The hearing was a private hearing and the public would not have been permitted in the court room. The Judge refused to let her give evidence from behind a screen, which would have shielded her from her alleged abuser, and from the row where the barristers normally sit, rather than the witness box which tends to be closer to the Judge. The consequence was that the Judge couldn't hear much of her evidence. 

Paulo 24 January 20 13:43

The judge is clearly a fuckwit. Terrifying that any judge should have these opinions, let along one specialising in family law. 

Anonymous 24 January 20 14:44

Explain your thought process 12.06 - do you think looking for evidence in relation to sexual harassment allegations is the same as finding in a rape case that consent is implied purely because there was no physical resistance or do you think looking for evidence in relation to sexual harassment allegations is the same as finding that consent in a rape case was implied because the lack of physical resistance was a factor which was taken into consideration?

SecularJurist 24 January 20 19:55

Staggering that there are still judges like this. The 1990s were replete with reports of judges who had, it seemed, been originally called to the Bar in the Jurassic age. This case is reminiscent of the case of the rape of an underage girl when the judge described the victim as 'no angel'. 

As the article states, while Judges in the Criminal Division receive training for handling vulnerable witnesses, this does not apply to the Family Division. 

Does this judge throttle his wife over the breakfast table when they have an argument, or thwack her with a riding crop if his eggs are overboiled? Or is he hen-pecked?

Anonymous 24 January 20 20:44

Even Russell doesn't say that the Defendant was guilty of rape though SecularJurist, and she doesn't suggest that Tolson believed the Defendant to be guilty or condoned the alleged behaviour.

Anonymous 27 January 20 01:14

After actually reading the decision, Tolson is being slightly misrepresented. Some useful analysis on other forums.

Human 27 January 20 11:31

(1) Tolson had made up his mind before the commencement of the hearing, and hence the Feng Shui antics. The problem was not a lack of legal training. His dismissal of powerful corroboration - calls to the police, discussions with witnesses, text messages - was profoundly unfair. His direction to investigate the mother's parenting was malicious. He ought, in my opinion, to be investigated by the judicial misconduct investigations office.

(2) I do not agree with the high court judge that Tolson failed to apply a binary findings model. He mused and groused about it, but explicitly said he was going to apply it. Which he then proceeded to do. As this legal tenant is not consistent with the empirical mathematics of probability  and is merely maintained for judicial consistency and convenience - I do not begrudge him his momentary squeamishness.

(3) I think that the appeals court judge elided Tolson's inference from his belief that it unlikely that a woman being raped wouldn't physically resist (an unsafe inference) that it was unlikely a rape has taken place with a legal finding that a lack of physical resistance constituted rape.

I think she did this because the judiciary sometimes feel obliged and empowered to substitute their sense of right and wrong with what the law says. And I think that this Solomonaic model of the dispensation of justice is at the root of Tolson's failings too.

(4) The high court has now opined that a participant's enjoyment or otherwise of the act of intercourse has a bearing on whether a rape occurred. That is a case of MeToo parody becoming reality. It cannot be right that a man can become a rapist where consent was given on the basis of higher expectations because of his lack of prowess as a lover.

Anonymous 28 January 20 08:27

I don't agree with all the points you raise Human, but you make a thoughtful and considered argument.

Anonymous 29 January 20 20:24

I think Russell comes out of this looking far worse than Tolson. Yes, Tolson made some errors in his handling of the case, but that type of thing goes on in courts up and down the land every day, and not just in sexual cases. But Russell appears to have fundamentally misinterpreted Tolson's judgement, and by criticising Tolson in the way she did has played into the hands of those with an agenda, the end result could be the weakening of the right to defend, judges becoming intimidated against clearing accused persons, and an increase in the amount of innocent people convicted. It will be interesting to see how the CoA deals with this and what their views are on Russell's remarks.