Kruger v Thompson
[2024] FedCFamC2G 883
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kruger v Thompson [2024] FedCFamC2G 883
File number(s): BRG 548 of 2022 Judgment of: JUDGE EGAN Date of judgment: 13 September 2024 Catchwords: HUMAN RIGHTS – Application for declarations and compensation for alleged sexual harassment – where the court was unable to make findings one way or the other that any pleaded conduct was unwelcome – where onus of proof not discharged by applicant – where application dismissed accordingly. Legislation:
Evidence Act 1995 (Cth) (No 2 of 1995) s. 140
Sex Discrimination Act 1984 (Cth) s. 28A
Sex Discrimination Act 1984 (Cth) s. 28B
Criminal Code Act 1899 (Qld) s. 222
Cases cited:
ASIC v Wilson (No. 3) [2023] FCA 1009
Holloway v McFeeters (1956) 94 CLR 470
Lehrmann v Network Ten Pty Ltd [2024] FCA 369
Rhesa Shipping Co SA v Edmonds & Anor: The Popi M (1985) 2 All ER 712
Division: Division 2 General Federal Law Number of paragraphs: 89 Date of last submission/s: 6 September 2024 Date of hearing: 24 May 2024 Place: Brisbane Counsel for the Applicant: Mr D. O’Gorman SC with Mr T. O’Brien Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondents: Mr L. Henry Solicitor for the Respondents: Donnelly Law Group ORDERS
BRG 548 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JANA KRUGER
Applicant
AND: ALAN STANLEY THOMPSON
First Respondent
FLAXTON GARDENS PTY LTD (ACN 138 775 505)
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
13 SEPTEMBER 2024
IT IS ORDERED THAT:
1.The Originating Application filed on 9 December 2022 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
INTRODUCTION
This proceeding centred around what relevantly occurred between the applicant (Kruger) and the first respondent (Thompson) between the late hours of 12 January 2019 and the early hours of 13 January 2019 when sexual intercourse occurred between them.
Thompson’s alleged conduct was the subject of a complaint of rape made by Kruger against Thompson in about June 2020. Thompson was acquitted on the charge of rape after a two (2) day trial conducted in the District Court of Queensland in November 2021. [1]
[1] See Transcripts of District Court Trial at Ex 4 and Ex 10.
Kruger lodged a Complaint Form with the Australian Human Rights Commission (“AHRC”) on 11 February 2022. The complaint was terminated on 12 October 2022.
Kruger filed the Originating Application in this proceeding on 9 December 2022.
Kruger’s pleaded case, as set out in the Amended Statement of Claim filed on 20 May 2024, was relevantly as follows:
1. The Applicant is, and was at all times material to this application:
(a) a natural female person born 29 December 1994;
(b) an employee of Workplace Pays Pty Ltd (Workplace Pays);
(c) a "workplace participant" within the meaning of section 28B of the Sex Discrimination Act 1984 (the SDA); and
(d) a “contract worker” within the meaning of section of the SDA.2. The First Respondent, at all times material to this application:
(a) is and was a natural male person born 1 August 1970;
(b) is and was the director and secretary of the Second Respondent corporation;
(c) is and was an agent of the Second Respondent;
(d) was married to the mother of the Applicant, Mariana Mathilda Thompson; and
(e) is and was a "workplace participant' within the meaning of section 288 of the SDA.
3. The Second Respondent, at all times material to this application:
(a) is and was a company duly registered in accordance with the requirements of the Corporations Act 2001 (Cth);
(b) is capable of suing and being sued;
(c) is and was carrying on the business of a wedding venue in Flaxton, Queensland ("the Premises");
(d) had engaged the Applicant as a contract worker via a contract with Workplace Pays to perform administrative duties at the Premises from a date unknown, but no later than 12 January 2019
(e) is and was a “principal” within the meaning of section 16 of the SDA.4. The Premises was a "workplace" within the meaning of section 288 of the SDA for:
(a) The Applicant; and
(b) The First Respondent.
5. At all times material to this application, the Applicant had a partner and a child ("the Family Responsibilities").
6. During the evening of 12 January 2019, the Applicant and the First Respondent were at the Premises performing work duties.
Particulars
The Second Respondent was hosting a networking event called "Summer Showcase".
The Applicant's duties included taking photographs.
7. The Applicant intended to sleep in a residence, on the Premises, on the evening of 12 January 2019 ("the Residence").
8. At a time unknown, after completing work duties, the Applicant entered the Residence and took medication, which was taken by the Applicant every evening, namely:
(a) Zoloft (150mg);
(b) Diazapam (10mg);
(c) Melatonia; and
(d) Stilnox.
("The Medications")
9. The Applicant was prescribed the Medications to assist sleep, and were required as a consequence of childhood sexual abuse perpetrated by a family member ("the Sexual Abuse").
10. The First Respondent was, on 12 January 2019, aware:
(a) of the Sexual Abuse;
(b) that the Applicant took the Medications every night;
(c) of the side effects of the Medications, including drowsiness; and
(d) the Family Responsibilities.
12. While seated next the Applicant, the First Respondent said to the Applicant, or words to the following effect:
(a) "I'm in love with you";
(b) "I wish things turned out differently and I could be with you";
(c) "We 're perfect for each other';
(d) That he wanted the Applicant to be his "lover on the side"
(e) "I have loved you for a very long time and I have wanted this for years now"; and
(f) That he wanted the Applicant "on the side".
("The Statements")
13. In making the Statements, the First Respondent has:
(a) made an unwelcome sexual advance to the Applicant; and, or alternatively
(b) engaged in unwelcome conduct of a sexual nature in relation to the Applicant.
14. A reasonable person in the circumstances of the First Respondent, would, having regard to the circumstances including:
(a) the Applicant having taken the Medications;
(b) the side effects of the Medications;
(c) the difference in age between the Applicant and the First Respondent;
(d) the First Respondent being the Applicant's step-father;
(e) the Sexual Abuse; and
(f) the Family Responsibilities;
have anticipated that the Applicant would be offended, humiliated or intimidated by
the Statements.
15. In the premises the First Respondent, in making the Statements, has sexually harassed the Applicant in contravention of section 288(6) of the SDA.
16. In response to the Statements, the Applicant said, or words to the effect of:
(a) "If you're wanting a relationship with me, you will end up like your stepfather'';
Particulars
In saying this, the Applicant was referring to the First Respondent's stepfather's sexual abuse of the First Respondent's sisters.
(b) "What! I don't agree";
(c) "Obviously you don't mean that"; and
(d) "You should go back to your wife" (meaning the Applicant's mother).
("the Responses")
17. The First Respondent then kissed the Applicant on the mouth.
18. By kissing the Applicant on the mouth, the First Respondent has:
(a) made an unwelcome sexual advance to the Applicant; and or alternatively
(b) engaged in unwelcome conduct of a sexual nature in relation to the Applicant.
19. A reasonable person in the circumstances of the First Respondent would, having regard to the circumstances including:
(a) the Responses;
(b) the Applicant saying, "I just want to go to sleep"
(c) the Applicant having taken the Medications;
(d) the side effects of the Medications;
(e) the difference in age between the Applicant and the First Respondent;
(f) The First Respondent being the Applicant's step-father;
(g) The Sexual Abuse; and
(h) The Family Responsibilities;
have anticipated that the Applicant would be offended, humiliated or intimidated bythe kiss on the mouth.
20. In the premises the First Respondent, by kissing the Applicant on the mouth, has sexually harassed the Applicant in contravention of section 288(6) of the SDA.
21. The First Respondent then opened a locked door leading to a room known as The Bridal Suite.
22. The First Respondent then guided the Applicant into The Bridal Suite, and sat the Applicant down on the edge of a bed.
23. The First Respondent then said to the Applicant, or words to the effect of, "I want to go further with this".
24. The Applicant said to the First Respondent, or words to the effect of, "I just want to go to sleep".
25. The First Respondent then closed and locked the door to The Bridal Suite, locking both the Applicant and the First Respondent in the Bridal Suite, and then returned to the bed and sat next to the Applicant.
(paragraphs 20 to 2425 collectively; the Bridal Suite Conduct)26. By engaging in the Bridal Suite Conduct, the First Respondent has:
(a) made an unwelcome sexual advance to the Applicant; and or alternatively
(b) engaged in unwelcome conduct of a sexual nature in relation to the Applicant.
27. A reasonable person in the circumstances of the First Respondent would, having regard to the circumstances including:
(a) the Responses;
(b) the Applicant saying, "I just want to go to sleep"
(c) the Applicant having taken the Medications;
(d) the side effects of the Medications;
(e) the difference in age between the Applicant and the First Respondent;
(f) the First Respondent being the Applicant's step-father;
(g) the Sexual Abuse; and
(h) the Family Responsibilities;
have anticipated that the Applicant would be offended, humiliated or intimidated by the Bridal Suite Conduct.
28. In the premises the First Respondent, by engaging in the Bridal Suite Conduct, has sexually harassed the Applicant in contravention of section 288(6) of the SDA.
29. After sitting next to the Applicant, the First Respondent again kissed the Applicant on the mouth.
30. In kissing the Applicant on the mouth, the First Respondent has:
(a) made an unwelcome sexual advance to the Applicant; and or alternatively
(b) engaged in unwelcome conduct of a sexual nature in relation to the Applicant.
31. A reasonable person in the circumstances of the First Respondent would, having regard to the circumstances including:
(a) the Responses;
(b) the Applicant saying, "I just want to go to sleep"
(c) the Applicant having taken the Medications;
(d) the side effects of the Medications;
(e) the difference in age between the Applicant and the First Respondent;
(f) the First Respondent being the Applicant's step-father;
(g) the Sexual Abuse; and
(h) the Family Responsibilities;
have anticipated that the Applicant would be offended, humiliated or intimidated by the kiss on the mouth.
32. In the premises the First Respondent, in kissing the Applicant on the mouth, has sexually harassed the Applicant in contravention of section 288(6) of the SDA.
33. After being kissed again by the First Respondent on the mouth, the Applicant said, or words to the effect of, "I don't want this".
34. The First Respondent then unzipped the Applicant's dress and removed her underwear leaving the Applicant naked ("the Undressing").
35. By engaging in the Undressing, the First Respondent has:
(a) made an unwelcome sexual advance to the Applicant; and or alternatively
(b) engaged in unwelcome conduct of a sexual nature in relation to the Applicant.
36. A reasonable person in the circumstances of the First Respondent would, having regard to the circumstances including:
(a) the Responses;
(b) the Applicant saying,"I just want to go to sleep"
(c) the Applicant saying, "I don't want this";
(d) the Applicant having taken the Medications;
(e) the side effects of the Medications;
(f) the difference in age between the Applicant and the First Respondent;
(g) the First Respondent being the Applicant's step-father;
(h) the Sexual Abuse; and
(i) the Family Responsibilities;
have anticipated that the Applicant would be offended, humiliated or intimidated by the Undressing.
37. In the premises the First Respondent, by engaging in the Undressing, has sexually harassed the Applicant in contravention of section 288(6) of the SDA.
38. The Applicant then removed a tampon from the Applicant's vagina ("the Removal").
39. By engaging in the Removal, the First Respondent has:
(a) made an unwelcome sexual advance to the Applicant; and or alternatively
(b) engaged in unwelcome conduct of a sexual nature in relation to the Applicant.
40. A reasonable person in the circumstances of the First Respondent would, having regard to the circumstances including:
(a) the Responses;
(b) the Applicant saying,"I just want to go to sleep"
(c) the Applicant saying, "I don't want this";
(d) the Applicant having taken the Medications;
(e) the side effects of the Medications;
(f) the difference in age between the Applicant and the First Respondent;
(g) the First Respondent being the Applicant's step-father;
(h) the Sexual Abuse; and
(i) the Family Responsibilities;
have anticipated that the Applicant would be offended, humiliated or intimidated by the Removal.
41. In the premises the First Respondent, by engaging in the Removal, has sexually harassed the Applicant in contravention of section 288(6) of the SDA.
42. The First Respondent has then engaged in oral sex with the Applicant, and inserted one of the First Respondent's fingers into the Applicant's vagina ("the Oral Sex").
43. By engaging in the Oral Sex, the First Respondent has:
(a) made an unwelcome sexual advance to the Applicant; and or alternatively
(b) engaged in unwelcome conduct of a sexual nature in relation to the Applicant.
44. A reasonable person in the circumstances of the First Respondent would, having regard to the circumstances including:
(a) the Responses;
(b) the Applicant saying, "I just want to go to sleep"
(c) the Applicant saying, "I don't want this";
(d) the Applicant having taken the Medications;
(e) the side effects of the Medications;
(f) the difference in age between the Applicant and the First Respondent;
(g) the First Respondent being the Applicant's step-father;
(h) the Sexual Abuse; and
(i) the Family Responsibilities;
have anticipated that the Applicant would be offended, humiliated or intimidated by the Oral Sex.
45. In the premises the First Respondent, by engaging in the Oral Sex, has sexually harassed the Applicant in contravention of section 288(6) of the SDA.
46. The Applicant has then said, or words to the effect of, "I don't want that".
47. The First Respondent has then said, or words to the effect of, "I just want to make you feel good"
48.
The ApplicantFirst Respondent then engaged in sexual intercourse with the Applicant ("the Sexual Intercourse").49. By engaging in the Sexual Intercourse, the First Respondent has:
(a) made an unwelcome sexual advance to the Applicant; and or alternatively
(b) engaged in unwelcome conduct of a sexual nature in relation to the Applicant.
50. A reasonable person in the circumstances of the First Respondent would, having regard to the circumstances including:
(a) the Responses;
(b) the Applicant saying, "I just want to go to sleep"
(c) the Applicant saying, "I don't want this" on two occasions;
(d) the Applicant having taken the Medications;
(e) the side effects of the Medications;
(f) the difference in age between the Applicant and the First Respondent;
(g) The First Respondent being the Applicant's step-father;
(h) The Sexual Abuse; and
(i) The Family Responsibilities;
have anticipated that the Applicant would be offended, humiliated or intimidated by the Sexual Intercourse.
51. In the premises the First Respondent, by engaging in the Sexual Intercourse, has sexually harassed the Applicant in contravention of section 288(6) of the SDA.
52. The Applicant then moved to
a house on the premisesthe Residence in which the First Respondent's wife, Mrs Thompson, and the First Respondent's two daughters and son typically resided("the Residence"), though they were not at the Residence at the time, and lay down in the First Respondent's 12-year-old daughter's bed.53. The First Respondent found the Applicant, and said, or words to the effect of, "I just want to tuck you in".
54. By saying "I just want to tuck you in", the First Respondent has:
(a) made an unwelcome sexual advance to the Applicant; and or alternatively
(b) engaged in unwelcome conduct of a sexual nature in relation to the Applicant.
55. A reasonable person in the circumstances of the First Respondent would, having regard to the circumstances including:
(a) the Responses;
(b) the Applicant saying, "I just want to go to sleep"
(c) the Applicant saying, "I don't want this" on two occasions;
(d) the Applicant having taken the Medications;
(e) the side effects of the Medications;
(f) the difference in age between the Applicant and the First Respondent;
(g) the First Respondent being the Applicant's step-father;
(h) the Sexual Abuse;
(i) the Family Responsibilities; and
(j) the Applicant lying in the First Respondent's 12-year-old daughter's bed;
have anticipated that the Applicant would be offended, humiliated or intimidated by the First Respondent saying "I just want to tuck you in".
56. In the premises the First Respondent, by saying "I just want to tuck you in", has sexually harassed the Applicant in contravention of section 288(6) of the SDA.
57. On the morning of 13 January ~2019, the Applicant walked into the office at the Premises to commence work.
58. The First Respondent said to the Applicant, "Morning Gorgeous".
59. By saying "Morning Gorgeous", the First Respondent has:
(a) made an unwelcome sexual advance to the Applicant; and or alternatively
(b) engaged in unwelcome conduct of a sexual nature in relation to the Applicant.
60. A reasonable person in the circumstances of the First Respondent would, having regard to the circumstances including:
(a) the Responses;
(b) the Applicant saying, "I just want to go to sleep"
(c) the Applicant saying, "I don't want this" on two occasions;
(d) the Applicant having taken the Medications;
(e) the side effects of the Medications;
(f) the difference in age between the Applicant and the First Respondent;
(g) the First Respondent being the Applicant's step-father;
(h) the Sexual Abuse; and
(i) the Family Responsibilities;
have anticipated that the Applicant would be offended, humiliated or intimidated by the First Respondent saying "Morning Gorgeous".
61. In the premises the First Respondent, by saying "Morning Gorgeous", has sexually harassed the Applicant in contravention of section 288(6) of the SDA.
62. The Applicant left work after approximately two hours and returned to her residence.
63. On or around 19 January
20222019, the Applicant was at the Residence at the request of Mrs Thompson (the Applicant's mother).64. Mrs Thompson said to the Applicant, or words to the effect of, "You need to go sort it out with [the First Respondent]. He's waiting outside for you".
65. The Applicant walked outside the Residence where the First Respondent was waiting, and had the following (or similar) conversation:
The First Respondent: Well this is tough. Honestly I was disappointed when you told your mum. We could have had something between us.
The Applicant: She deserved to know. What did you tell her?
The First Respondent: Obviously I had to play the "I don't remember" card.
66. By saying "Honestly I was disappointed when you told your mum. We could have had something between us", the First Respondent has:
(a) made an unwelcome sexual advance to the Applicant; and or alternatively
(b) engaged in unwelcome conduct of a sexual nature in relation to the Applicant.
67. A reasonable person in the circumstances of the First Respondent would, having regard to the circumstances including:
(a) the Responses;
(b) the Applicant saying, "I just want to go to sleep"
(c) the Applicant saying, "I don't want this" on two occasions;
(d) the Applicant having taken the Medications;
(e) the side effects of the Medications;
(f) the difference in age between the Applicant and the First Respondent;
(g) The First Respondent being the Applicant's step-father;
(h) The Sexual Abuse; and
(i) The Family Responsibilities;
have anticipated that the Applicant would be offended, humiliated or intimidated by the First Respondent saying "Honestly I was disappointed when you told your mum. We could have had something between us".
68. In the premises the First Respondent, by saying "Honestly I was disappointed when you told your mum. We could have had something between us", has sexually harassed the Applicant in contravention of section 288(6) of the SDA.
The Discrimination
69. By engaging in the conduct pleaded herein at:(a) Paragraph 12;(b) Paragraph 17;(c) Paragraphs 20 to 24;(d) Paragraph 29;(e) Paragraph 34;(f) Paragraph 38;(g) Paragraph 42;(h) Paragraph 48;(i) Paragraph 53;(j) Paragraph 58; and or alternatively(k) Paragraph 65the First Respondent has subjected the Applicant to detriment on the grounds of the Applicant's sex, namely female, in contravention of section 16(d) of the SDA.Vicarious Liability
70. The Second Respondent is liable for the actions of the First Respondent contravening the SDA as pleaded herein, pursuant to section 106(1) of the SDA.
Thompson and the second respondent (Flaxton) relied upon a defence filed on 14 March 2023. Relevantly, the Defence:
(a)Admitted the allegations in paragraphs [1]-[9], [10(d)], [17], [29], [57], [62], [63(a)] and [65(a)] of the Amended Statement of Claim.
(b)Set out the “Defendant’s Contentions” at [72]-[86] of the Defence as follows:
Defendant's contentions
72. Prior to 12 January 2019, the applicant and the respondent:
(a) generally enjoyed an emotionally intimate relationship (Intimate Relationship);
(b) from time to time, engaged in private conversations during which:
(i) they each confided in one another that they were experiencing difficulties in their relationships with their respective romantic partners;
(ii) they each confided in one another about problems they were experiencing in their personal lives generally;
(iii) they each expressed a desire to escape from their personal circumstances or "run away from life";
(iv) the applicant said words to the first respondent to the effect that she did not see him as a step-father;
(contents of subparagraph 1 (b)(ii) together, Intimate Conversations).
73. On 12 January 2019, the applicant and the first respondent performed work duties in connection with an event (Summer Showcase) for the marketing of the second respondent's business held at the premises of that business (Premises).
74. Part of the Premises comprised an apartment known as the Bridal Suite.
75. Part of the premises comprised a function room known as the Winery.
76. The applicant and the first respondent ceased performing work duties at approximately 9pm on the evening of 12 January 2019.
77. Between about 9pm on 12 January 2019 and about 12:15am on 13 January 2019, certain individuals remained at the Premises, namely:
(a) the applicant;
(b) the first respondent;
(c) Benjamin Connolly;
(d) Mariana Thompson (nee Kruger); and
(e) for a short while after 9pm, Salome Kruger.
78. At about 12:15am on 13 January 2019, the applicant and Mariana Thompson left the Premises.
79. At about 12:45am, the applicant returned to the Premises.
80. At various times between about 12:45am and about 1 :30am on 13 January 2019:
(a) the applicant sat on the first respondent's lap;
(b) the applicant cuddled up to the first respondent in a physically intimate way;
(c) the first respondent placed his hand on the applicant's lap, whereupon the applicant rested her hand on top of the first respondent's;
(together Intimate Physical Contact).
81. At about 1 :30am on 13 January 2019, Benjamin Connolly left the Premises.
82. After Mr Connolly left the Premises, the first respondent and the applicant were alone in the Premises, during which time:
(a) the first respondent was seated on a couch in the Winery:
(b) the applicant was seated on the first respondent's lap;
(c) the first respondent and the applicant engaged in conversation in the nature of the Intimate Conversations;
(d) the first respondent massaged the applicant's shoulders;
(e) the applicant removed her shoes and rested her legs on the first respondent's lap;
(f) the first respondent massaged the applicant's feet;
(g) the applicant said words to the effect that she was enjoying the massage a lot;
(h) the applicant rearranged her dress to allow the first respondent to massage her legs and thighs;
(i) the applicant said words to the effect:
(i) that she was feeling very excited by the massage;
(ii) "are you actually intending to create a sexual feeling"
(iii) "are you wanting this to go further sexually";
(j) the respondent said words to the effect that he was comfortable going further if the applicant was happy to;
(k) the applicant and the first respondent discussed the possible consequences of proceeding further sexually;
(l) the applicant and the first respondent agreed that they were both adults;
(m) the applicant and the first respondent kissed for some time;
(n) the applicant and the first respondent engaged in intimate fondling for some time;
(o) the applicant opened or rearranged her dress to expose her breasts and underwear; and
(p) the applicant made comments to the effect that the kissing and fondling felt good;
(together Winery Pre-Sexual Conduct).
83. At some time after about 1:30am:
(a) the applicant and the first respondent:
(i) moved from the couch and walked up internal stairs leading to the Bridal Suite;
(ii) sat together on the landing outside the door to the Bridal Suite;
(iii) kissed for some time;
(iv) engaged in intimate fondling for some time;
(b) the first respondent asked the applicant if she was sure she wanted to go into the Bridal Suite;
(c) the applicant said words to the effect that she wanted to go into the Bridal Suite; and
(d) the applicant and the first respondent entered the Bridal Suite.
(e) the first respondent sat on the bed in the Bridal Suite and removed his shirt;
(f) the applicant stood in front of the first respondent and removed her dress and underwear;
(g) the respondent observed that the applicant appeared to have a tampon inserted and said words to the effect "looks like you have a rat tail hanging out';
(h) the applicant removed the tampon and said words to the effect "it is ok as I am finished bleeding" and "it is clean";
(i) the applicant entered the adjoining ensuite bathroom and placed the tampon in a rubbish bin, before returning to the bedroom;
(j) the first respondent said words to the effect:
(i) "are you comfortable with this?";
(ii) "do you want this?"
(k) the applicant responded with words to the effect:
(i) "yes";
(ii) "I need this"; and
(l) the applicant and the first respondent got into the bed;
(together Bridal Suite Pre-Sexual Conduct).
84. After getting into the bed, the applicant and the first respondent engaged in sexual intercourse (Sexual Intercourse).
85. Shortly after the Sexual Intercourse began:
(a) the respondent said words to the effect "I'm sorry but I cannot finish";
(b) the applicant said words to the effect "that's OK'
(c) the respondent rolled away from the applicant to the side of the bed and fell asleep.
86. Some time after the Sexual Intercourse ceased, the first respondent:
(a) woke and found himself alone in the Bridal Suite;
(b) collected his clothing and left the Bridal Suite; and
(c) walked to the Residence, where the first respondent usually resided; and
(d) at about 4:30am on 13 January 2019, entered the bedroom he shared with Mariana Thompson and went to sleep.
STANDARD OF PROOF
In civil proceedings before the Court, s. 140 of the Evidence Act 1995 (Cth) (No 2 of 1995) (“the Act”) applied. It provided as follows:
EVIDENCE ACT 1995 - SECT 140
Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject - matter of the proceeding; and
(c) the gravity of the matters alleged.
When considering the relevant principles to be applied when assessing the evidence adduced before the Court in this matter, the Court has respectfully had regard to those parts of the judgment of Lee J in Lehrmann v Network Ten Pty Ltd [2024] FCA 369 at [90]-[111] and [126]-[132], which respectively provided as follows:
[90]It is next appropriate to set out how I have directed myself as to fact-finding, the burden of proof, the standard of proof, and other more particular matters given the nature of the principal allegation.
[91]Without introducing complications arising from the differing ways in which the phrase “burden of proof” has been used – and the differences between legal and evidential burdens (as to which see C R Williams, ‘Burdens and Standards in Civil Litigation’ (2003) 25(2) Sydney Law Review 165), I will use the expression burden or onus of proof as simply being the identification of which party has to demonstrate the case or an aspect of the case propounded, whereas the standard of proof is the applicable benchmark that the evidence adduced must meet to discharge that onus.
[92]The question of who bears the onus in aspects of this case is straightforward. Mr Lehrmann had (and has successfully discharged) his onus in proving he has been defamed as alleged; the respondents now bear the onus of proof with respect to their defences. If those defences fail and Mr Lehrmann is entitled to damages, he will then be required to prove the compensatory damages he seeks.
[93]What this means is that in order to make out the defence of substantial truth, the respondents need to discharge their onus of proving that Mr Lehrmann raped Ms Higgins. The nature of this aspect of the forensic contest brings with it considerations that are necessary to canvass in further detail.
[94]I have discussed the relevant principles at length a number of times (see, for example, Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 (at 324–325 [284]–[288])). Notwithstanding this, it is worth referring to Besanko J’s recent survey of matters relevant to onus and proof in Roberts-Smith v Fairfax Media Publications Pty Ltd (No. 41) [2023] FCA 555. In Roberts-Smith, his Honour dealt with a number of matters relevant to: (a) the onus of proof in a justification or substantial truth case (at [93]–[94]); and (b) the standard of proof in a case where there is a serious allegation (at [95]–[110]). With respect, his Honour’s exposition in relation to these matters is comprehensive. I gratefully adopt the above-mentioned paragraphs.
[95]At the risk of supererogation, I will, however, say something in my own words. I will also deal with the agreed facts relevant to Ms Higgins’ credit and some miscellaneous matters, which have informed my approach to the evidence.
E.2 Relevant Observations as to Standard of Proof
[96]As to the standard of proof, the starting (and end) point is s 140 of the Evidence Act 1995 (Cth) (EA), which relevantly provides:
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
[97]The matters set out in subsection (2)(a), (b) and (c) are mandatory but not exhaustive considerations; other considerations may also be relevant, including the inherent likelihood of the occurrence of the fact alleged and the notion that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and the other to have contradicted: Blatch v Archer (1774) 1 Cowp 63 (at 65 per Lord Mansfield).
[98]The concept used in subsection (1), being the “balance of probabilities”, is often misunderstood. It does not mean a simple estimate of probabilities; it requires a subjective belief in a state of facts on the part of the tribunal of fact. A party bearing the onus will not succeed unless the whole of the evidence establishes a “reasonable satisfaction” on the preponderance of probabilities such as to sustain the relevant issue: Axon v Axon (1937) 59 CLR 395 (at 403 per Dixon J). The “facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”: Jones v Dunkel (1959) 101 CLR 298 (at 305 per Dixon CJ). Put another way, as Sir Owen Dixon explained in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361), when the law requires proof of any fact, the tribunal of fact must feel an actual persuasion of its occurrence or existence before it can be found.
[99]Justice Hodgson put it differently, but to the same effect, by observing that when deciding facts, a civil tribunal of fact is dealing with two questions: “not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision”: see D H Hodgson, ‘The Scales of Justice: Probability and Proof in Legal Fact-finding’ (1995) 69 Australian Law Journal 731; Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 (at 576 [14]–[16] per Hodgson JA, Beazley JA agreeing).
[100]Whatever way it is put, a “[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact”: NOM v DPP [2012] VSCA 198; (2012) 38 VR 618 (at 655 [124] per Redlich and Harper JJA and Curtain AJA); Brown v New South Wales Trustee and Guardian [2012] NSWCA 431; (2012) 10 ASTLR 164 (at 176 [51] per Campbell JA, Bergin CJ in Eq and Sackville AJA agreeing).
[101]Although s 140 EA is now the starting point, the concepts it incorporates are neither new nor novel. Any fact-finding inquiry depends upon context. As Kiefel CJ, Gageler and Jagot JJ recently observed in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (at 874–875 [57]), the statutory provision:
… reflects the position of the common law that the gravity of the fact sought to be proved is relevant to “the degree of persuasion of the mind according to the balance of probabilities”. By this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that “the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved”.
(Citations omitted)
[102]As those acting for Mr Lehrmann correctly state, in Briginshaw, Dixon J (at 362) emphasised that reasonable satisfaction is not attained independently of the nature and the consequence of the fact to be proved, and his Honour referred to the seriousness of the allegation, the inherent unlikelihood of the alleged occurrence, or the gravity of the consequences flowing from the finding in question as matters which could all properly bear upon whether the court is reasonably satisfied or feels actual persuasion. The other members of the Court in Briginshaw also referred to the seriousness of the allegation sought to be proved as a matter relevant to whether or not the tribunal of fact could be satisfied of the fact alleged (at 347 per Latham CJ; 350 per Rich J; 353 per Starke J; and 372 per McTiernan J).
[103]None of this is inconsistent with what I said in Kumova v Davison (No 2) (at [262]), where I noted “the focus on the gravity of the finding is linked to the notion that the Court takes into account the inherent unlikelihood of alleged misconduct”. They are linked in that both the inherent unlikelihood of the alleged occurrence and the gravity of the consequences each require consideration.
[104]An allegation of rape ranks high in the calendar of criminal conduct, and, at the risk of repetition, the allegation needs to be approached with “much care and caution” and with “weight being given to the presumption of innocence and exactness of proof expected”: Briginshaw (at 347 per Latham CJ; 363 per Dixon J). Further, a finding of rape would, needless to say, be seriously damaging to Mr Lehrmann’s reputation and this consequence properly gives one pause before making it: Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 (at 345–346 [68]–[69] per Mansfield and Gilmour JJ).
E.3 The Practical Difference Between the Civil and Criminal Standard
[105]Although I will explain below why the allegations to be proved in making out the truth defence and the allegations to be made out by the Crown in the criminal proceeding are not identical, this is an example where the same essential wrongdoing is to be assessed by reference to both the criminal and the civil standard. Such cases are not common, and they bring into sharp focus cardinal aspects of our legal system.
[106]Most first-year law students are introduced to the possibility of error of wrongful convictions and erroneous acquittals. They are (or at least were) made aware of what is often referred to as “Blackstone’s ratio”, being the fourth of five discussions of policy by Sir William Blackstone in his 1765 treatise Commentaries on the Laws of England, vol IV, ch 27 (Oxford University Press, 2016) (at 352) that “all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer”. I digress to note that this notion is ancient: the idea it is better to allow some guilty to escape rather than punish an innocent has Biblical origins (Genesis, 18:23–32) and later was the subject of discussion by Talmudic scholars (see Maimonides, The Commandments, Commandment No 290 (Charles B. Chavel, trans. 1967) (at 270)). Indeed, sixteen years before Blackstone, the concept had been expressed by Voltaire – albeit in a different ratio: “’tis much more prudence to acquit two persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent”: Voltaire, Zadig; or, The Book of Fate: An Oriental History (1749) (at 53).
[107]In any event, this moral choice accommodating the possibility of error has been reflected in fundamental aspects of our criminal justice system, including the presumption of innocence and the logically connected requirement the burden of proof rests with the prosecution. It also finds reflection in the rigour of the criminal law standard of proof.
[108]Hence, although it may be trite, it is worth stressing that in contrast to the present forensic contest, if this allegation of rape was to be determined at a criminal trial, it would not be open for the tribunal of fact to find the case proven unless it is satisfied that it has been proved beyond reasonable doubt: s 141(1) EA.
[109]So even though it is necessary to bear in mind the mandatory s 140(2) EA factors and the cogency of the evidence necessary to establish rape on the balance of probabilities, and that the rape will not be proven unless I feel an actual persuasion of its occurrence, the difference between the criminal and civil standard of proof is substantive and can be decisive in dealing with the same underlying allegation.
[110]Apart from anything else, this difference is evident from the necessity that in a criminal trial, the facts as established must be such as to exclude all reasonable hypotheses consistent with innocence.
[111]By way of useful summary, as was emphasised by the High Court in Rejfek v McElroy (1965) 112 CLR 517 (at 521 per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ):
[t]he difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.
…
[126]As I will explain further below, the particularised allegation made by the respondents brings with it the requirement to prove:
(1) that, at the time and place alleged (that is, at Parliament House on 23 March 2019), Mr Lehrmann had sexual intercourse with Ms Higgins;
(2) without Ms Higgins’ consent; and
(3) knowing Ms Higgins did not consent.
[127]It is notorious that in many rape trials, the forensic battleground is whether the Crown can prove beyond reasonable doubt the second element (non-consent element) and the third element (knowledge element). In recent times, law reformers have focused attention on whether it is appropriate that consent to sexual activity must be communicated by words or actions, such that there is a responsibility to take steps to find out whether the other person is consenting. This has spurred some recent legislative change: see, for example, the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW).
[128]It is beyond the scope of this judgment to discuss these changes, but as the Victorian Law Reform Commission recently put it in its report Improving the Justice System Response to Sexual Offences: Report (September 2021) (at [19.13]), some of the features of the criminal justice system:
make sexual offences more difficult to prove in court. By their nature, sexual offending often happens in private, without other witnesses. The accused does not have to give evidence because they have a right to silence. For rape, the need to prove there was no consent means that many cases will end up focusing on the complainant.
[129]What is notable about this civil case, and the criminal case that preceded it, is that by reason of Mr Lehrmann’s forensic position to contest the establishment of the first element (that sexual intercourse occurred), he has not engaged directly (through challenging the Crown case at the criminal trial or by way of evidence before me) with the reality and appreciation of consent.
[130]Specifically, Mr Lehrmann has advanced an account that he came back to the Ministerial Suite accompanied by Ms Higgins for them to then go their separate ways: not only was there no sex, but no intimacy of any kind.
[131]Below I explain why this aspect of Mr Lehrmann’s evidence is stuff and nonsense, but for present purposes, this conclusion makes it necessary to point out that in general, disbelief of one witness’s account does not establish the contrary, or that a witness giving a contrary account must be believed: Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 (at 385–386 [60] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
[132]Of course, if I am ultimately unable to make a finding one way or another as to what actually happened, it is open to decide the issue on the basis that the party who bears the burden of proof on this issue (that is, the respondents) have failed to discharge their burden: Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 (at 955–956 per Lord Brandon, Lords Fraser, Diplock, Roskill and Templeman agreeing). Relatedly, and importantly, given my rejection of Mr Lehrmann’s account of what went on, it must be borne in mind that a civil onus of proof is not discharged by mere disbelief in opposing evidence (see, for example, in the context of a criminal onus, Liberato v R (1985) 159 CLR 507 (at 515 per Brennan J)).
The Court has also had regard to the judgment of Lord Brandon in Rhesa Shipping Co SA v Edmonds & Anor: The Popi M (1985) 2 All ER 712, where the House of Lords was there dealing with a total loss claim against underwriters for the loss of a ship. At first instance, Bingham J had to decide whether the proximate cause of the ship’s loss was a collision with a submerged submarine, or whether the loss was caused by a failure of the ship’s plating. Substantial expert evidence had been adduced at trial in support of each such proposition. When considering the judgment of Bingham J, Lord Brandon (with whom Lords Fraser, Diplock, Roskill and Templeman agreed) at pp. 717 – 719 said as follows:
“My Lords, the result of the underwriters putting forward this alternative cause of the ship's loss was to lead Bingham J into approaching the decision which he had to make as being a simple choice between the cause of loss relied on by the shipowners and the alternative cause of loss put forward by the underwriters. Although he had in an earlier part of his judgment referred expressly to the observations with regard to burden of proof made by Scrutton LJ in Cia Martiartu v Royal Exchange Assurance Corp [1923] 1 KB 650 at 657, which I quoted earlier, he does not seem, when he came later in his judgment to the point of actual decision, to have given any consideration at all to the third possible solution to the case contemplated in those observations. That third possible solution would have been to say that he was left in doubt as to the proximate cause of the ship's loss, and that, in those circumstances, the shipowners' actions should be dismissed on the simple ground that they had not discharged the burden of proof which lay on them. Bingham J had before him a mass of expert evidence relating to the possibilities that the proximate cause of the ship's loss was a collision with a submerged submarine on the one hand or wear and tear of the shell-plating on the other. Dealing with the submarine theory first, he stated seven cogent considerations which militated strongly against that theory. I do not propose to set out, or even try to summarise, those seven considerations. I think it helpful, however, to state the first consideration, which I regard as having a certain convincing simplicity about it, namely that no submarine was seen before or after the casualty.
Having set out the seven cogent considerations which militated strongly against the submarine theory to which I have just referred, Bingham J expressed his conclusion about the theory in this way ([r 983] 2 Lloyd's Rep 23 5 at 246):
'I think it would be going too far to describe a collision between the vessel and a submarine, rupturing the shell-plating of the vessel, as impossible. But it seems to me to be so improbable that, if I am to accept the [shipowners'] invitation to treat it as the likely cause of the casualty, I (like the [shipowners'] experts) must be satisfied that any other explanation of the casualty can be effectively ruled out.'
Bingham J then went on to examine the alternative wear and tear theory put forward by the underwriters. He went through the essential features of the complex expert evidence which had been adduced before him, and, having done so, expressed his conclusion as follows ([ 1983] 2 Lloyd's Rep 23 5 at 248):
'They [the underwriters] are not, of course obliged to prove that explanation, even on a balance of probabilities, but unless I am satisfied that some degree of probability attaches to it, I am left with no explanation but the owners'.'
Then, after a further reference to the expert evidence, he continued:
'In the result, I find myself drawn to conclude that the [underwriters'] wear and rear explanation must on the evidence be effectively ruled out. That leaves me with the choice between the owners' submarine hypothesis and the possibility that the casualty occurred as a result of wear and tear but by a mechanism which remains in doubt.'
The passages which I have quoted from Bingham J's judgment amply support the observations about his approach to the case which I made earlier. These observations were to the effect that he regarded himself as compelled to make a choice between the shipowners' submarine theory on the one hand and underwriters' wear and rear theory on the other, and he failed to keep in mind that a third alternative, that the shipowners' had failed to discharge the burden of proof which lay on them, was open to him.
As regards the shipowners' submarine theory, Bingham J stated in terms that he regarded it as extremely improbable, a view with which I think it unlikely that any of your Lordships will quarrel. As regards underwriters' wear and tear theory, it was contended by counsel for the shipowners that Bingham J had ruled it out as impossible. The language used by him in different places is, however, ambivalent, and I think chat it would be more accurate to say that he regarded the wear and tear theory not as impossible, but as one in respect of which any mechanism by which it could have operated was in doubt.
My Lords, the late Sir Arthur Conan Doyle in his book The Sign of Four describes his hero, Mr Sherlock Holmes, as saying to the latter's friend, Dr Watson: 'How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?' It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J decided to accept the shipowners' submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable.
In my view there are three reasons why it is inappropriate to apply the dictum of Mr Sherlock Holmes to which I have just referred to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned.
The first reason is one which I have already sought to emphasise as being of great importance, namely chat the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the· burden of proof is the only just course for him to take.
The second reason is that the dictum can only apply when all re levant facts are known, so chat all possible explanations, except a single extremely improbable one, can properly be eliminated. That state of affairs does not exist in the present case: to take but one example, the ship sank in such deep water that a diver's examination of the nature of the aperture, which might well have thrown light on its cause, could not be carried out.
The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence thar it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or nor, and that the party on whom the burden of proving char the event occurred lies has therefore failed to discharge such burden.
In my opinion Bingham J adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely that the evidence left him in doubt as to the cause of the aperture in the ship's hull, and char, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them.
If ever a case asked to be treated as coming within the dictum with regard to burden of proof of Scrutton LJ in Cia Martiartu v Royal Exchange Assurance Corp [1923] 1 KB 650 at 657, this was it. The shipowners failed to establish that the ship was seaworthy, and they only put forward an extremely improbable cause of her loss. In these circumstances the judge should have found that the true cause of the loss was in doubt, and that the shipowners had failed to discharge the burden of proof which was on them. My Lords, I turn now to the judgments in the Court of Appeal (see [1984] 2 Lloyd's Rep 555). Having regard to the single but fundamental ground on which I consider that j the judgment of Bingham J is vitiated, it seems to me, with all respect to the three judges in the Court of Appeal, that the only parts of their judgments which it is necessary for me to examine are those pans which deal with that aspect of the case. Sir John Donaldson MR, after reciting the choice which Bingham J had said that he felt himself compelled to make, said (at 558):
'In such a situation there is no doubt chat the learned judge could have held that he was not satisfied with either explanation, but in the light of his specific reference to this possibility in the second numbered paragraph of his exposition of the law ([1983] 2 Lloyd's Rep 23 5 at 244), I cannot believe that he overlooked it.'
O'Connor LJ did not deal specifically with the point, but supported the judgment of Bingham J broadly on the ground that there was ample evidence to justify him in rejecting the underwriters' wear and tear theory, and, accordingly, ample justification for his accepting the shipowners' submarine theory. As to this I would only observe that the conclusion with regard to acceptance of the submarine theory does not follow at all necessarily from the premise with regard to rejection of the wear and rear theory.
May LJ followed a line similar to that of Sir John Donaldson MR. He said (at 561):
'I would not have been surprised if, in all the circumstances of this case, the learned Judge had concluded that he just did not know what had caused the sinking and that therefore the owners failed. The argument that one can infer from his judgment that he wrongly felt that he had to come down on one side or the other, and that the "don't know" finding was not open to him, is in my view an attractive one. However, as Sir John Donaldson, M.R., has also mentioned, the judge specifically referred to the dictum of Lord Justice Scrutton in La Compania Martiartu v. The Corporation of the Royal Exchange Assurance ([ 1923] 1 KB 650 at 657) ... Having done so, I too cannot think that so experienced a Judge in this field overlooked this possible result in law.'
My Lords, it is no doubt more likely than not that a judge who directs himself correctly on a certain aspect of the law in the earlier part of his judgment will apply the relevant principle properly later in his judgment when the occasion for its application arises. Failure by a judge to act in this way is, however, not unknown, and in a long and complicated case like the present one it can easily happen.
The only way to see whether a judge applied at the point of decision a principle of law which he correctly enunciated earlier is to examine his judgment and see what he has said in it. Having regard to the way in which Bingham J expressed the view that he was compelled to choose between the shipowners' submarine theory on the one hand and underwriters' wear and tear theory on the other, and having regard further to the fact that, when he neared the point of decision in his judgment, he did not discuss or consider the third possibility which was open to him, of simply finding the shipowners' case not proved, I am driven, reluctantly but inescapably, to the conclusion that on this occasion even Homer nodded.
The Court of Appeal, wrongly in my view, credited Bingham J with giving consideration to a solution of the case which the judge himself, when coming to the point of decision, did not discuss or even mention at all.
In my opinion the only inference which could justifiably be drawn from the primary facts found by Bingham J was that the true reason of the ship's loss was in doubt, and it follows that I consider that neither Bingham J nor the Court of Appeal were justified in drawing the inference that there had been a loss by perils of the seas, whether in the form of collision with a submerged submarine or any other form.
For these reasons I would allow the appeal, set aside the orders made in the two consolidated actions by Bingham J and the Court of Appeal, and award the appellant underwriters their costs in your Lordships' House and in the two courts below.”
The Court has further been assisted in its deliberations concerning the applicable principles regarding the acceptance or otherwise of competing unsatisfactory evidence, given in this case by each of Kruger and Thompson, by its having respectfully had regard to the judgment of Jackson J in ASIC v Wilson (No. 3) [2023] FCA 1009 at [98]-[114] where His Honour said:
IV. PRINCIPLES
Proof
[98]This is a case which posed difficult forensic issues. Which of the two key witnesses was telling the truth, or at least accurately recollecting the key events? It is therefore worth setting out the approach that must be taken to the burden of proof, the standard of proof, and assessment of the evidence where there are robust challenges to the credibility of witnesses.
Burden and standard of proof
[99]It is common ground that the burden of proof in this matter rests entirely on ASIC. Mr Wilson's defence is premised on a denial that he knew the information which, it is said, he failed to disclose to the other members of the Board, and a denial that the omission to disclose the information exposed Quintis to relevant jeopardy, to an extent that resulted in a breach of s 180(1) of the Corporations Act. Mr Wilson has not raised any affirmative defence for which he has the burden of proof.
[100]The burden of proof can become particularly important when the Court decides that it is not satisfied as to the case of either of the parties. It may reject both cases. Disbelief of one does not require acceptance of the other. In that eventuality, the Court has open to it the third choice of saying that the party with the burden of proving the allegations it has made has failed to discharge that burden: see Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at [60]. As undesirable as that may be, there are cases where the unsatisfactory state of the evidence or of other aspects of the case means that is the only just course for the Court to take: Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 2 All ER 712 at 718.
[101]The standard of proof is governed by s 140 of the Evidence Act 1995 (Cth), which provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.[102]It was also common ground that this reflects the principles that Dixon J explained in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336: see Australian Securities and Investments Commission v Mitchell (No 2) [2020] FCA 1098 at [1123] (Beach J). As well-known as those principles are, they are important in this case so it is helpful to set out relevant passages here. After considering the views of academic commentators which suggested some flexibility in the statement and application of the standard of proof in civil cases, Dixon J said (at 361‑362):
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
[103]After explaining that even in cases involving serious allegations, some issues may not need to be proved on strong evidence, Dixon J went on to say (at 362-363, citations removed):
It is often said that such an issue as fraud must be proved 'clearly', 'unequivocally', 'strictly' or 'with certainty'. This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.
[104]Later, after dismissing the idea that there was some different standard of proof on the issue of adultery in divorce proceedings, Dixon J said (at 368-369):
Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the tribunal of fact that the adultery alleged was committed, it should so find.
[105]In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at 450, Mason CJ, Brennan, Deane and Gaudron JJ explained these principles as follows (footnotes removed):
Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
[106]The conventional perception so described is not very helpful in this case. The allegation made against Mr Wilson is, at least in form, that he failed to exercise powers and discharge duties with the requisite degree of care and diligence. Dishonesty and criminality are not elements of the alleged breach, although the allegation that the conduct was serious because it was deliberate comes close. Views may reasonably differ as to the improbability of such a failure in the circumstances alleged here. Most importantly, though, one of the key planks of Mr Wilson's defence is that Dr Castella did engage in deliberately dishonest behaviour. While I do not suggest that there is any onus on Mr Wilson to establish that Dr Castella was dishonest, to the extent that he submits that he was, the common sense approach reflected in their Honours' 'conventional perception' points away from accepting that submission.
[107]The second matter mentioned in the summary in Neat Holdings has more weight in this case. Although dishonesty is not alleged, findings adverse to Mr Wilson in the proceeding are likely to seriously affect his reputation. Also, while the proceeding is not criminal, ASIC does seek civil penalties, which is of course a serious matter. It also seeks Mr Wilson's disqualification from managing corporations. It follows that the court will only reach a state of reasonable satisfaction that Mr Wilson breached s 180(1) if there is clear proof of the kind described in Briginshaw. ASIC did not suggest otherwise.
Inferences and circumstantial proof
[108]It does not follow from the conclusion just expressed that only direct evidence is capable of establishing ASIC's case. By 'direct evidence' I mean, specifically in this case, the evidence of Dr Castella that he told Mr Wilson about Galderma's intention to terminate the Galderma Agreements and that he gave a copy of the Termination Agreement to him. My doubts about the credibility of both Dr Castella and Mr Wilson mean that the question of whether other evidence may suffice to discharge ASIC's burden to the requisite standard is relevant.
[109]The answer to that question is that, even if I do not find Dr Castella credible, or at least relevant aspects of his evidence reliable, I may still find that ASIC has made out its case. Inferences can be drawn from the available evidence, including the body of documentary evidence. It is permissible to draw inferences from a combination of facts: Australian Securities and Investments Commission v Big Star Energy Ltd (No 3) [2020] FCA 1442 at [30] (Banks‑Smith J).
[110]In Vines v Australian Securities and Investments Commission [2007] NSWCA 75; (2007) 73 NSWLR 451 at [810], Ipp JA (Spigelman CJ agreeing) emphasised that '[n]othing in Briginshaw detracts from the proposition that a serious allegation might be proved by "circumstantial evidentiary facts" and "inference and circumstance"'. In Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5-6, Dixon, Williams, Webb, Fullagar and Kitto JJ explained that process of reasoning as follows:
... you need only circumstances raising a more probable inference in favour of what is alleged ... where direct proof is not available it is enough [if] the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is [a] mere matter of conjecture ... All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than on the balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.
[111]Thus the Court is not authorised to choose between guesses on the ground that one seems more likely than the others. 'The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied': Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305 (Dixon CJ, in dissent but not on this point).
[112]The probative force of a combination of circumstantial facts may be cumulative and it may be an error to assess the probability of each of them individually: Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632 at [134]- [135]. Ultimately, there are no hard and fast rules. 'The inquiry is simply, taking due account of what was said in Neat Holdings ... has the allegation been proved on a balance of probabilities': Palmer v Dolman [2005] NSWCA 361 at [47] (Ipp JA, Tobias and Basten JJA agreeing).
Unreliable witnesses and the objective framework
[113]It is orthodox and sensible in a case like this to form views about the reliability of witnesses based not only on observations made and impressions formed about their demeanour, but also reasoning as to the plausibility of certain parts of their evidence, considered in the light of the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15 at [16] (Gleeson CJ, Gaudron, Kirby and Hayne JJ). Greater weight may be given to contemporaneous or near-contemporaneous documents than to fallible human memory, especially when the lapse of time between the events in question and the trial is long and especially when the witnesses have an interest in the outcome of the litigation: see Chant v Curcuruto [2021] NSWSC 751 at [269] (Hallen J) and the authorities referred to there.
[114]In a case where conflicting accounts are given by witnesses who each lack credibility or reliability, to resolve the conflict by comparing the extent to which they each lacked those qualities can be a challenging task, so it is sensible to prefer, instead, to resolve it by reference to the contemporaneous objective evidence: see Krolczyk v Winner [2022] NSWCA 196 at [88], [90] (Griffiths AJA, White and Kirk JJA agreeing).
SEX DISCRIMINATION ACT 1984 (CTH) (“SDA”)
Section 28A of the SDA relevantly provided as follows:
SEX DISCRIMINATION ACT 1984 - SECT 28A
Meaning of sexual harassment
(1) For the purposes of this Act, a person sexually harasses another person (the person harassed ) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
(1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:
(a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
(b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
(c) any disability of the person harassed;
(d) any other relevant circumstance.
(2) In this section:
"conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
Section 28 B of the SDA makes such conduct unlawful.
In closing submissions, Counsel for each of the parties agreed that Kruger could not succeed in her claim if the Court was to find that Thompson had not made an unwelcome sexual advance, or that Thompson had not engaged in unwelcome conduct of a sexual nature. Additionally, both Counsel agreed that Kruger would fail in her claim if the Court was unable to make a finding one way or the other as to whether any of Thompson’s alleged conduct was unwelcome. In such case, Kruger would have failed to have discharged her evidentiary burden of proof.
It was submitted that the Court ought only proceed to a consideration of whether any of Thompson’s alleged conduct gave rise to feelings on the part of Kruger that she had been offended, humiliated or intimidated, if a finding was made that Thompson’s alleged conduct was unwelcome.
CONSIDERATION OF THE EVIDENCE
The present matter was not a case where any recorded CCTV evidence leading up to Kruger and Thompson entering the Bridal Suite was adduced at trial to assist the Court in its deliberations. Nor was it a case where any documentation was able to be referenced to assist the Court. Accordingly, it was necessary to examine the evidence of all those present at relevant times on 12 and 13 January 2019 for the Court to appreciate how events unfolded.
Kruger deposed in her affidavit filed on 29 August 2023 that she was born on 29 December 1994. She therefore attained her majority on 29 December 2012. That fact attained some significance when, at the time of the making of closing submissions, Senior Counsel for Kruger relied upon the provisions of s. 222 of the Criminal Code Act 1899 (Qld) in advancing the demonstrably erroneous and scandalous submission that the fact that Thompson had had sexual intercourse with Kruger on the morning of 13 January 2019 was capable of constituting the crime of incest. Only when the provisions of s. 222(7) of the Code were brought to the attention of Counsel, in the context of Thompson having first entered into a de facto relationship with Kruger’s mother in 2015, was that submission withdrawn.
It was common ground between the parties that Kruger had been present at Flaxton Gardens on 12 January 2019 for the purpose of her taking photographs of those who had attended the Flaxton networking event, referred to as the “Summer Showcase”. It was not in dispute that such event concluded with a fireworks display at about 8.30 pm on 12 January 2019. Nor was it in dispute that Kruger, Kruger’s mother (Mariana), Thompson and a photographer named Connolly, had moved to an area at Flaxton called “the Winery”, where they each consumed alcohol. Kruger’s sister Salome was also present at the Winery for a short time, but left at about 9 – 10.30 pm to return to the residence nearby.
CONNOLLY
Connolly was an important witness as to what transpired in the Winery between about 9 pm on the night of 12 January 2019, and about 1.30 am on the morning of 13 January 2019, when he left to drive home. Connolly impressed the Court as someone who was genuinely disinterested in the case brought against Thompson by Kruger. Connolly was not a close friend of Thompson. When pressed by Senior Counsel in cross-examination as to whether he had had any conversation with Thompson about the events of 12 and 13 January 2019 after those dates, Connolly said that he hadn’t, and that he had been thrust into something that wasn’t his problem. The relevant cross-examination on that point was as follows: [2]
[2] T p. 266.43 – 267.11
MR O’GORMAN: Okay. What discussions have you had with Mr Thompson about these proceedings?
MR CONNOLLY: Nothing. He hasn’t been allowed to talk to me.
MR O’GORMAN: Right. You’ve had no discussions with him at all about – let’s go back. You’ve had no discussions with him at all about the events of 12 and 13 January 2019?
MR CONNOLLY: No, because I – I contacted him about it because I was pissed off about it, because I had been thrust in the middle of something that wasn’t my problem.
MR O’GORMAN: Right. And this - - -?
MR CONNOLLY: And so he said, “Sorry. I can’t talk to you about it.”
MR O’GORMAN: Okay. So this is following the police contacting you?
MR CONNOLLY: Yes.
MR O’GORMAN: Okay. Prior to that time, had you had any discussions with Mr Thompson 10 about - - -?
MR CONNOLLY: No. I knew nothing about anything.
Connolly’s evidence at [4]-[24] of his affidavit filed on 8 December 2023 was as follows:
Events of 12 and 13 January 2019
4. Prior to 12 January 2019, my interactions with Jana were limited. Jana had modelled in a photoshoot I had done at Flaxton Gardens and I had seen her around Flaxton Gardens generally. There had been a few drinks and some friendly social interaction after the photoshoot.
5. On 12 January 2019, I attended an industry event at Flaxton Gardens called the Summer Showcase. I was present at the end of that day, when the event finished at about 830pm.
6. After the event finished, I stayed around. Alan, Jana and I sat in the bar area of Flaxton Gardens.
7. While we were in the bar area, I made a batch of espresso martini cocktails.
8. I was not drinking, as I wasn't sure whether I was going to stay or drive home. Between about 830pm on 12 January 2019 and when I left at between 1 and 130am on 13 January 2019, I had two espresso martinis.
9. Jana was drinking. I do not know how many drinks she had. She seemed to be a bit tipsy and was in a relaxed, bubbly mood. I would describe her mood and behaviour as someone who had had three or four drinks.
10. Alan was also drinking, I do not know how may drinks he had. He also seemed a bit tipsy and I would also describe his state as someone who had had three or four drinks. For most of that evening, we were engaged in an in-depth conversation. Alan was engaging in that conversation normally. He did not seem to be having any difficulty conversing or understanding what I was saying.
11. After being in the bar area for a short while, we all moved into the main function area of Flaxton Gardens and sat in a sofa and some chairs that had been set up for the event.
12. Alan and I sat in the sofa area talking. The conversation was about difficulties I was having in my relationship with my partner. We remained there for much of the night until I left.
13. While Alan and I were talking, Mariana was "up and down" between the sofa area and an adjacent area where she was singing and dancing. She came and sat down a few times but was otherwise singing, dancing and selecting music. In my experience, that was usual for Mariana. At some point, Mariana left the function area and did not return. I am not certain what time she left.
14. Jana was also up and down between the sofa area and other areas. To the best of my recollection, for the entire evening she was also moving between the inside and outside of the venue. I believe when she was outside she was vaping, but I did not directly see her doing so.
15. After Mariana left, Jana continued to move between the sofa area and the outside of the venue.
16. When Jana was inside at the sofa area, she was largely sitting with Alan. She sat next to me once or twice and briefly sat on my lap once. The way she sat on my lap made me feel uncomfortable and I did not respond.
17. When Jana was sitting with Alan, she sat on his lap once or twice. The remainder of the time, Jana was sitting up against Alan, with her body leaning on him and snuggling into him, with Alan's arm around her shoulder. I estimate that there were about a dozen occasions when that occurred. I noticed on a few occasions that Alan had his hand on Jana's leg. On some of those occasions I noticed that Jana had her hand on top of Alan's.
18. I took particular notice of Jana and Alan's physical interactions because they made me feel uncomfortable. It seemed to me that there was a sexual element in those interactions, particularly when Alan's hand was on Jana's leg. It also seemed to me that none of the physical interaction between Jana and Alan was unwanted or not appreciated or accepted. Those things seemed inappropriate in the context of their relationship as stepfather and stepdaughter, which left me feeling uncomfortable.
19. As I was engaged in conversation with Alan, for most of the night I was able to closely observe his mode of speech, his posture and demeanour and behaviour generally. At no point did Alan seem to me to be affected by alcohol to an extent that I would be concerned about his ability to function or make decisions.
20. Similarly, when Jana sat with me and Alan, I was able to closely observe her speech, posture, demeanour and general behaviour. Based on those observations, it did not seem to me that Jana was intoxicated or affected by drugs or alcohol in any way that made me concerned about her ability to function or make decisions.
21. Jana did not participate much in the conversation between Alan and me. However, when she did so, she seemed to be conversing normally. When she moved between the sofa area and the outside of the venue, she seemed to be walking normally. At no point did I observe her to be asleep or dozing. Although she seemed relaxed, she appeared to be awake and alert.
22. In lay terms, neither Alan nor Jana seemed ‘drunk drunk’ to me at any point.
23. Between about 1 and 130am on 13 January 2019, Alan and I left the function area. Jana was not present when we left and I assumed she was outside vaping.
24. Alan walked me to my car and we spoke for a few minutes. I then got in my car and drove home.
That evidence was largely consistent with the contents of a police statement made by Connolly on 25 July 2020 [3], save that the affidavit prepared by the lawyers for Thompson, which was executed by Connolly, did not make any reference to his having stated that he believed that at the end of the night both Kruger and Thompson were heavily intoxicated, and that they were slurring their words, or that Kruger was not walking properly. During cross-examination, Connolly confirmed that he had not referred to the intoxication of Kruger and Thompson, and of the slurring of any words, or of walking difficulties, because his affidavit related almost entirely to what had transpired in the Winery, where he said he had been for all of the time in serious conversation with Thompson up until the time he left to go home. In cross-examination, when pressed as to why he hadn’t included reference to Kruger slurring her words or having difficulty walking properly, Connolly gave the following evidence: [4]
[3] Ex. 11
[4] See T p. 269.21 – 270.39
MR O’GORMAN: So you agree that at about 1/1.30 am, Jana was slurring her words?
MR CONNOLLY: I believe so. Yes.
MR O’GORMAN: Yes. And you agree that she was struggling to stand up?
MR CONNOLLY: I wouldn’t say struggling to stand up. I would say struggling to walk properly.
MR O’GORMAN: Well, they’re your words in that affidavit – in that statement, aren’t they?
MR CONNOLLY: Yes.
MR O’GROMAN: And that was correct as at July 2020?
MR CONNOLLY: Yes.
MR O’GORMAN: That’s how you recalled it back in July 2020?
MR CONNOLLY: Yes.
MR O’GORMAN: Is there any reason why you state, in paragraph 20 of your affidavit, that is at tab 21, that:
She wasn’t affected –
Sorry. Let’s be exact.
I didn’t see that Jana was intoxicated or affected by drugs in any way that made me concerned about her ability to function or make decisions.
MR O’GORMAN: Is there any reason why you didn’t indicate, at that point or in that particular affidavit, that she was slurring her words and was struggling to stand up?
MR CONNOLLY: Because when I recalled that moment, my brain went to when we were all sitting down. When we were all talking.
MR O’GORMAN: When you recall what moment?-
MR CONNOLLY: When – when we were all sitting on the couch, talking.
MR O’GORMAN: Yes, no. I’m trying to ascertain why it is that you haven’t - - -?
MR CONNOLY: ---Because when I recalled that moment, the recollection I had in my brain was when we were all sitting 5 down.
MR O’GORMAN: Yes. Could I ask you again to read at tab 21, the second sentence of para 20?
MR CONNOLLY: Yes.
MR O’GORMAN: Is there any reason why you didn’t include in that paragraph the fact that Jana, that 10 evening, was slurring her words and was struggling to stand up?
MR CONNOLLY: ---No.
MR O’GORMAN: Why isn’t it included?
HIS HONOUR: I didn’t hear that. Why - - -
MR O’GORMAN: He said “no”.
HIS HONOUR: Yes.
MR O’GORMAN: And I’m now asking why he hasn’t included it.
HIS HONOUR: Right.
MR CONNOLLY: Because my recollection of that evening was solely sitting on that couch because that’s pretty much what I did the entire night other than making cocktails so - - -
MR O’GORMAN: But in paragraph – sorry?
MR CONNOLLY: - - - when I witnessed Jana, when I saw her – and the only exposure I had to her was on that couch, and at that point, she seemed fine. Afterwards, right at the end – because she was in and out all night, like, and I was talking to Alan the whole time. Later on, right at the end, then she – she seemed more intoxicated, but I’m not an expert, and I can’t say how intoxicated she was. All I can give you is what I visually saw.
MR O’GORMAN: Yes. All I’m asking is why didn’t you indicate in this affidavit that she was slurring her words and struggling to stand up at or about the time you left?
MR CONNOLLY: ---I don’t know.
The Court accepted the evidence of Connolly in all respects, particularly in relation to the conduct of Kruger sitting on his lap for a short time, and of her having behaved in such a sexualised way whilst sitting on Thompson’s lap that he was made to feel uncomfortable. His discomfort was not solely due to Kruger’s conduct. It was also the conduct of each of Kruger and Thompson, whilst Kruger was sitting on Thompson’s lap, which understandably made him feel uncomfortable.
It is significant that Connolly deposed that it seemed to him that there was a sexual element to the interaction between Kruger and Thompson, and that none of the physical interaction between the two was either unwanted, not appreciated, or not accepted. [5] His affidavit evidence, and his evidence in cross-examination, ought to be accepted.
[5] [18] of Connolly affidavit.
MARIANA AND KRUGER
Mariana Kruger was also an important witness. Her affidavit filed on 22 May 2024 was largely consistent with a statement made by her to police on 7 July 2020. [6] Of significance is the fact that in her affidavit she deposed that she considered that rather than Kruger and Thompson having a close familial relationship as at 12-13 January 2019, their relationship was more in the nature of them being good friends. [7] At [9]-[28] of her affidavit, Mariana deposed as follows:
[6] See Ex. 13, the genesis of which emanated from a statement emailed by Mariana to QPS on 25 June
2020, that being Ex. 12.
[7] See [5]-[8] of Mariana’s affidavit
Night of 12 January 2019
9.After the event finished, Alan, Jana and I sat in the bar area of Flaxton Gardens. The bar area is adjacent to both the restaurant area and the main function area of Flaxton Gardens, called the winery. Also sitting in the bar area with us was Ben Connolly.
10. I had seen Jana have a few glasses of champagne during the afternoon. I think she had at least one espresso martini. She did not appear to me to be very drunk at that time, but seemed to be in a lively, sociable "party" mood.
11. I saw Alan drinking a few Gin & Tonics earlier in the afternoon. He seemed to me to be a bit tipsy, but not drunk.
12. After being in the bar area for a short while, we all moved into the winery, where there was a sofa and some chairs set up. They had been set up as a display by one of Flaxton Gardens' suppliers.
13. Alan and Jana were drinking Whiskey and I had a glass of Red Wine. Ben had one small whiskey.
14. Alan and Ben were sat in the sofa area talking. They seemed to be deep in conversation. I was not really involved in the conversation.
15. I put on some music and Jana and I sang some karaoke in the main function area, away from the sofa area. We are both singers and enjoyed singing in the main function area.
16. After singing, I put on some 80's music and Jana & I danced to it while Alan & Ben were still in conversation. Jana seemed to be a bit tipsy at this stage.
17. As time passed, Jana's dancing became more wild and made me feel uncomfortable as I have not seen her dance like this before. As her mother, I felt it was inappropriate.
18. Because I was feeling uncomfortable about Jana's way of dancing, I went back to the sofa area and sat down. Jana came and sat next to me. Alan and Ben were still in conversation.
19. At that point I saw that Alan had removed his trousers. I knew he would sometimes do that among family and other people he feels comfortable with, as he suffers from eczema. He was wearing loose boxer-short type underwear with a long shirt.
20. While we were seated in the sofa area, Jana rested her legs over my lap and played with my hair. I was uncomfortable. and asked her to stop. I asked her to stop behaving like that and she giggled. I gave her a slap her on her leg and said stop it to which she then replied "mum, don't do this – it turns men on when you do this."
21. That made me really uncomfortable and I told Jana that it's lime to go to bed. This was around 12.30am, maybe closer to 1am on 13 January 2019.
22. Jana initially protested but eventually Jana agreed and we both got up and left the winery area.
23. When Jana and I left the winery, Jana seemed very tipsy but could walk by herself.
24. As we were heading back, I used the bathroom adjacent to the Flaxton Gardens office. I then stopped into the office start a print job I had needed for the next day. I had already cued up the job and just needed to "hit print" on ii. I estimate that using the bathroom and starling the print job would have been about two or three minutes in total.
25. Jana was not there when I came back out of the office. I went back into the winery area briefly to check for Jana. She was not there. Ben and Alan were still there talking. I didn't disturb them but just left.
26. I returned to the House and saw that the door to Jana's room was closed. I assumed Jana had gone to her room to go to bed, so I went to my room, went to bed and fell asleep.
27. At around 4:00am Alan came into the room and woke me up by turning the light on and off. It was obvious that he was quite drunk. He dropped his clothes on the floor an got into bed. I went back to sleep.
28. I was exhausted and once I fell asleep, nothing disturbed my sleep, until Alan woke me.
The Court finds that it is in doubt as to what happened in the Bridal Suite between Kruger and Thompson on the question of whether their sexual intercourse was consensual or not. Kruger’s evidence as to what happened in the room was unpersuasive, as was Thompson’s. Of the two inferences open to the Court on the question of consent, the Court finds that neither inference was more probable than the other.
The evidence of Connolly was significant, in that he gave credible independent evidence that the interactions between Kruger and Thompson on the sofa in the Winery before he left to drive home were both highly sexualised and consensual. Thompson’s evidence about the sexualised conduct between him and Kruger having continued between them whilst they were on the sofa after Connolly left was contextually plausible based upon Connolly’s evidence.
There was no reasonable explanation advanced by Kruger as to why she first arrived at the top of the stairs. The Court finds that her explanation about her blowing out the candles was a fabrication intended to justify her having gone first to the top of the stairs. The Court further finds, as a result of the previous finding, that Kruger must have been told by Thompson that the Bridal Suite could be accessed by the stairs that she ascended. The Court finds that before they each ascended the stairs leading to the Bridal Suite, it was the joint intention of both Kruger and Thompson to go into the Bridal Suite with an amorous intent.
Kruger’s evidence that Thompson removed a tampon from her was also something about which the Court has real doubt. None of the evidence about the placement of the tampon into a bin after its removal assisted the Court in determining whether it was Thompson or Kruger who removed the tampon. The respective cross-examinations of each of Kruger and Thompson on point was not elucidating.
MEDICAL EVIDENCE
Dr De Leacy, a psychiatrist, was called on behalf of Kruger. He had prepared a report dated 12 April 2023 as a result of one interview with her. At the time of that interview, Dr De Leacy was in his Toowong, Brisbane rooms, and Kruger was in Tasmania. When giving evidence in chief about whether a person would have had their memory adversely affected after they had consumed both medication of the type prescribed for Kruger, as well as a substantial amount of alcohol over a 4-hour period, particularly in relation to that person’s memory of a stressful or traumatic event which might have occurred at the end of that 4 hour period, the evidence of Dr De Leacy was as follows: [43]
MR O’GORMAN: But what if, at the time of – or within a couple of hours of taking those four medications and the alcohol we’ve spoken of, there was a stressful or traumatic event? Would that – would memory be impaired equally?
DR DE LEACY: Actually, stressful events are more readily registered and retained.
MR O’GORMAN: Remembered?
DR DE LEACY: Registered and remembered. Registered means the brain takes notice of it and processes it. Without getting too technical, there’s two different pathways in the brain for memory. Ordinary memory goes through a part of the brain called the hippocampus and then gets redistributed to the temporal lobe, but traumatic memories go through the anterior part of the hippocampus which is called the amygdala, and this becomes far more indelible. That’s why people with PTSD have indelible memories.
MR O’GORMAN: Right. Yes. Thank you, Doctor. Thank you, your Honour.
[43] T p. 228.5 – .17.
The above evidence of Dr De Leacy leads the Court to conclude that had the events of 12-13 January 2019 been traumatic or stressful to Kruger, then Kruger’s memory of all claimed events would have been indelible or approaching indelible. To the contrary, Kruger’s memory of events leading up to entering the Bridal Suite, and the events within the Bridal Suite and following, was imprecise and vague. That feature, along with the other aspects of unsatisfactory evidence given by Kruger, has persuaded the Court that whatever transpired in the Bridal Suite was neither stressful nor traumatic to her. It was not unwelcome.
THE KRUGER AND LINDSAY WEDDING
Kruger married James Lindsay on 12 December 2019 at Flaxton Gardens. Mariana in her affidavit at [56] said that Kruger had thanked Thompson during formal speeches made at the wedding reception, and that she had called Thompson a good person, but when a video recording of the speeches was played to her during her cross-examination, [44] she readily agreed that that had not been said by Kruger during the formal speeches.
[44] See Annexure MW-01 to the affidavit of Ms Wakefield filed on 10 May 2024.
Mariana nonetheless was adamant that Kruger had said those things about Thompson. Her evidence was as follows: [45]
[45] T p. 338.27 – 339.9.
MR O’GORMAN: All right. Well - - -?
MS VAN DER WESTHUIZEN: And the reason why I remember that it was – I appreciated her taking the time to thank him for what he has done, driving 30 minutes away to get - - -
MR O’GORMAN: Sure?
MS VAN DER WESTHUIZEN: Because they make doughnuts at the venue. They could have had those doughnuts but - - -
MR O’GORMAN: Sure?
MS VAN DER WESTHUIZEN: --- she wanted specific ones.
MR O’GORMAN: Sure?
MS VAN DER WESTHUIZEN: ---And that’s the context when I – why I remember that.
MR O’GORMAN: Yes. He – she may well have thanked him for going to that effort of driving the half hour, three quarters of an hour each way to get the doughnuts - - -?
MS VAN DER WESTHUIZEN: Yes.
MR O’GORMAN: - - - but I’m suggesting that she didn’t add anything to the effect of being a good person?
MS VAN DER WESTHUIZEN: No, I remember that. I did – I do remember that.
MR O’GORMAN: But you also remembered it being in the form of the speeches?
MS VAN DER WESTHUIZEN: Yes. I get what you’re saying. If it’s not in the speech, she definitely did say that. I stand by that.
HIS HONOUR: Was there anything that occurred between 12 December 2019 and 5 January 2020 when she had that telephone call when she was – you say she was yelling and screaming – yelling and swearing at you that would have given rise to a change in attitude on her - - -?
MS VAN DER WESTHUIZEN: I don’t know whether - - -
HIS HONOUR: - - - on her part?
MS VAN DER WESTHUIZEN: I don’t know whether there was something that happened in that time. We had family time after Christmas together. I went out with Jana and the two grandmas and her sister as, you know, together everything seems to be – seemed to be normal. We had a function at the venue to say thank you to our staff. A few days before that, about a week before that - - -
At the time of her having given evidence at trial, Mariana had been separated from Thompson for a substantial period of time. She had no interest in the business which might have motivated her to be loose with the truth. A loan advanced by Mariana to Flaxton during an earlier period of financial strain had by then been fully repaid. There was no reason why Mariana would have given false evidence to the Court under oath. The Court finds that she and Connolly were witnesses of truth who tried to do their best in recalling events which had occurred late at night on 12-13 January 2019, as well as at Kruger’s wedding in December 2019, more than four years previously.
Further, the Court finds as implausible, and bizarre, the proposition that Kruger would have agreed to have held her own wedding reception at Flaxton Gardens if she had in fact been raped by Thompson at that very venue. Thompson was, at the time of Kruger’s wedding, central to the business operations of Flaxton, and assisted Kruger in planning for the reception.
10 JANUARY 2020 – FIRST OCCASION OF RAPE ALLEGATION MADE TO MARIANA BY KRUGER
Mariana’s evidence concerning when Kruger first made the rape allegation to her was important for the purpose of assessing Kruger’s evidence, because it exposed how her evidence was diametrically opposed to Mariana’s evidence on point. The Court finds that Mariana was truthful concerning this issue, and that Kruger was not.
It was in the context of Kruger having had her wedding reception at Flaxton Gardens only about one month beforehand, and in the context of Kruger having praised Thompson during the course of such reception, that Mariana deposed that the first occasion on which Kruger had said to her that she had been raped by Thompson, or that the sex which had occurred between them was non-consensual, was on 10 January 2020.
The lapse of time between when Mariana was first told by Kruger on 13 January 2019 that she and Thompson had had sex, and when Kruger said to Mariana on 10 January 2020 that the sex was non-consensual, came as a surprise to Mariana. At [38] – [55] of Mariana’s police statement [46] Mariana said as follows:
[46] See Ex. 13.
38. Jana told me towards end of June that James and she wanted to get married on 12 December 2019 at Flaxton. I said that would be good as money was tight, I could at least give her more of a wedding here.
39. In around July or August. I remember Jana didn't want to work weekends anymore because of childcare issues. Jana suggested her friend Jess come to work for us as she had moved back on the coast. Jess then started working for us I think it was at end of August. After Jana trained Jess up to do her job, I asked Jana to finish her shifts at Flaxton as she was getting very disrespectful to me in front of Jess and Dani. I didn't appreciate her speaking and treating me like that.
40. Jana and I started planning the wedding and I went to America in November and came back two weeks before the wedding. Around this time, we all went out for Alan and my son Johan's birthday for pizza and had a great time. Everything seemed to be ok.
41. The wedding went well and everyone had a good time. Jana thanked Alan for all he did to make the wedding special as I told her how hard he worked to make sure everything was perfect.
42. After this time. we had Christmas Breakfast on boxing day with all the kids and my mum. Jana and James were there, and it was all good.
43. I remember we had our staff party on the 5th or 6th January 2020 and Jana came to that. I asked her why she is coming as she is not working here, and she said that she worked there for most of the year and just wanted to say goodbye. I didn't think much of it. That night Jana and Sam were very rude to me and I ended up crying as my kids really hurt me with their behaviour. Looking back, I think they already knew what was coming.
44. The next day, Jess didn't show up for work and Dani was so tense at work that she was throwing up. I tried calling, texting, and emailing, but Jess wouldn't respond. We then had a goodbye dinner for my mum on 9th January and Jana was at the dinner. She seemed distant.
45.I remember around this time that Jess told me something (Jess told me she/eels uncomfortable to work at Flaxton any longer as she heard some disturbing things). I called Jana on 10 January 2020 and spoke to her (J asked her if she told Jess (about sleeping with Alan). Jana told me that she told Dani a while ago and Dani told Jess).
46. I remember that it was around this time that Jana told me that Alan had raped her. I was upset and shocked, as I couldn't believe what I was hearing, or imagine Alan doing this. Jana and I had an argument on the phone about me not leaving Alan and the business. Jana was yelling and swearing at me on the phone. I remember at one point that Jana said something to me about her son and not wanting her son "to be around her rapist". Jana was yelling and swearing at me so much that I put the phone down.
47. After the phone call, I started wondering so many things about why Jana had not said anything to me before this or why she had her wedding at Flaxton.
48. I was furious, confused and hurt. I worked hard to forgive Jana and Alan for betraying me and our marriage. I had to forgive them, support them, and work with them. I love them both but they both hurt me very much. I was in the middle and with nowhere to go.
49. Sometime after this, I remember Dani asked if she could speak to me off site from Flaxton. I went to a park in Montville where she suggested meeting and I remember after I got there San1 came as well. I wasn't aware that San1 was coming. Both Sam and Dani kept saying to me things like I had to leave Alan and Flaxton. They both told me things (They told ·would look after me and that what Alan did was not right).
50. I remember both Dani and Sam calling Alan a "rapist" at this time. I remember them saying things to me (Sam and Dani wanted me to say the words that Alan is a rapist). I didn't agree with what they were saying as I didn’t believe that Alan was a rapist. I felt very disrespected by what they were both saying. I couldn't listen to them further and I left and went back to Flaxton.
51. When I got back to Flaxton, I told Alan what was said between Dani, Sam and I. I remember that Alan was extremely upset. Alan told me at this time "I didn't force myself onto Jana. We did sleep together, and have intercourse, but it was not rape".
52. I then asked Alan "Why was the middle door to the winery open that evening?" Because I knew that this door is always locked.
53. Alan said "I took one of the suppliers from the expo through to the apartment that day as they hadn't seen the apartment before. I left the door open so other suppliers could also see the Apartment. All the doors were open that night and anybody could have walked in".
54. Alan then said to me "It was not something we had planned, it happened, and I'm sorry. I think I should move out".
55. I agreed with Alan when he said this. I moved out of our bedroom. shortly after my son Johan left the house mid-January 2020.
In cross-examination concerning this issue, Mariana’s evidence was relevantly as follows: [47]
[47] T p.334.12 – 336.13 and at 339.10 – .31.
T p. 334.12 – 336.13:
MR O’GORMAN: Okay. Yes?
MS VAN DER WESTHUIZEN: That was during the call that she has phoned me. That was - - -
MR O’GORMAN: Yes?
MS VAN DER WESTHUIZEN: Yes.
MR O’GORMAN: And it was around that time that Jana told you that Alan had raped her?
MS VAN DER WESTHUIZEN: Yes.
MR O’GORMAN: All right. And she told you something to the effect of – about her son – well, can you read that paragraph to yourself?
HIS HONOUR: Which paragraph?
MR O’GORMAN: 46.
HIS HONOUR: 46. So you’re asking her to read 45 and 46?
MR O’GORMAN: Yes. 45 was to identify the date. She – Ms Van Der Westhuizen has done that, and now we’re talking about the content of 46.
THE WITNESS: Yes.
HIS HONOUR: So you had this conversation around 10 January 2020?
MS VAN DER WESTHUIZEN: Yes.
HIS HONOUR: And what makes you remember that date?
MS VAN DER WESTHUIZEN: That was the – exactly a year after the event, on the same event we hold every year.
HIS HONOUR: Right?
MS VAN DER WESTHUIZEN: I was busy setting up for that event. Also one of my staff members didn’t show up for work that day, and she’s a friend of Jana’s that worked for us, so I called Jana to ask her, you know, if she knows anything about why Jess is not at work, and this is where this conversation came about.
MR O’GORMAN: Your Honour, I’m ready to proceed when your Honour is.
HIS HONOUR: Well, I think we’re ready to see the video.
MR O’GORMAN: Your Honour, could I just finish this little paragraph rather than - -
HIS HONOUR: Yes.
MR O’GORMAN: - - - having to bring the witness back to it?
HIS HONOUR: Yes.
MR O’GORMAN: Can we remain with 46? You say that:
I remember at one point Jana said something –
now, “at one point”, still talking about that same conversation?
MS VAN DER WESTHUIZEN: Yes.
MR O’GORMAN: Yes:
Jana said something to me about her son, not wanting her son to be around her rapist.
MS VAN DER WESTHUIZEN: Yes.
MR O’GORMAN: Yes. And you’ve quoted, “to be around her rapist”. Are they the words - - -?
MS VAN DER WESTHUIZEN: That’s what she said, yes.
MR O’GORMAN: Yes. Thank you. And she was yelling and swearing at you - - -?
MS VAN DER WESTHUIZEN: Yes.
MR O’GORMAN: when doing – yes, thank you. Thank you, your Honour. I’m finished with that paragraph.
HIS HONOUR: Well, in that conversation, did you have – did you ask her why she had raised it at that time? Looking by reference to what you said at paragraph 47 of your statement?
MS VAN DER WESTHUIZEN: No, I didn’t ask her why she asked me then, or why she told me then. I was just – I couldn’t believe what I was hearing, and I said to her, “So, you know, why are you saying this?” And she just – she – she wasn’t – it wasn’t a building conversation that she had with me. She - - -
HIS HONOUR: It wasn’t a what?
MS VAN DER WESTHUIZEN: A building conversation. You know, a good conversation.
HIS HONOUR: Okay. I couldn’t hear you. It wasn’t a what conversation?
MS VAN DER WESTHUIZEN: A building conversation.
HIS HONOUR: A building - - -?
MS VAN DER WESTHUIZEN: A positive, positive conversation. She was very angry, she was very distraught, she was swearing, she was yelling, and I said to her that, you know, and she said “If you don’t leave Alan, then you won’t see my – your grandson again.” And I said, “Why? I didn’t do anything wrong.” And she said, “I don’t want him to be around my rapist.” Something in that contest – context. And it was only afterwards that I thought, “Why would you only say that now? Why would she only come out with this now?” But I was in the middle of organising a venue – event that day. I didn’t think about it further that day. I just put the phone down. I actually hang the phone up because of the way she was talking to me, and it – I was very upset, but I had to focus, and I just hang up the phone.
HIS HONOUR: Anything?
MR O’GORMAN: No. Thank you, your Honour.
HIS HONOUR: So you’re content for the video to be played now?
MR O’GORMAN: Yes, your Honour
T p. 339.10 – .31:
MR O’GORMAN: The 10th – before 10 January?-
MS VAN DER WESTHUIZEN: Yes. And she attended. Even though she wasn’t a staff member anymore, she attended that evening. She was very rude to me that evening and left without saying goodbye. I was in tears at the end of the evening because I just – I couldn’t understand why my daughter treated me like that. And then, a few days later, I – she – we spoke about – and this is what – so it must have been something that was – the pot was boiling. I didn’t know that.
HIS HONOUR: Was she in a then stable relationship with Mr Lyndsay?
MS VAN DER WESTHUIZEN: They were married then. 20
HIS HONOUR: I know, but - - -?
MS VAN DER WESTHUIZEN: Yes. As far as I could tell, yes.
HIS HONOUR: Yes, Mr O’Gorman.
MR O’GORMAN: Your Honour, I have nothing further for this witness, thank you.
HIS HONOUR: Yes.
MR O’GORMAN: Thank you, Ms Van Der Westhuizen.
Some five months after 10 January 2020, Kruger made a complaint of rape at the Coolum Police Station on the Sunshine Coast. [48]
[48] [346] of Kruger affidavit.
JAMES LINDSAY
Lindsay deposed that he first found out about the allegation of rape at or about the time Kruger made the complaint to the Police in June 2020.
At [62] of Lindsay’s affidavit filed on 29 August 2023, Lindsay deposed that he had told Thompson that Kruger took medication to help her sleep. That was consistent with the evidence of Thompson at [93] of his affidavit where he deposed that he knew that Kruger took medication from time to time to calm her, or to help her sleep.
The evidence of Lindsay was otherwise of little weight, as he was not central to any of the events of 12 or 13 January 2019.
SALOME KRUGER
Salome was present at the Winery in the presence of Thompson, Kruger, Mariana and Connolly for only a short period of time on the evening of 12 January 2019. She said she left the Winery to return to the residence at about 10.30 pm.
She next recalled Kruger entering her room and taking away a pillow.
At about 4.30 am, Salome said that Kruger again entered her room and lay on the bed next to her. She said that Kruger was shaking and crying. At [35] of her affidavit filed on 11 October 2023 (the first affidavit), she said that in response to her having asked Kruger what was wrong, Kruger said words to the effect of “ … Something has happened.” At [38] of her first affidavit, Salome recorded that Kruger said “Alan had sex with me.”
At [47] – [48] of her first affidavit, Salome deposed that after Kruger had eventually fallen asleep, she couldn’t get back to sleep. Instead, she said that she drafted a diary entry in the form of a post to her private Tumblr account. That post was Annexure SK-01 to her first affidavit.
Rather than recording in her post that Kruger had only first said the words “Something has happened” as per [35] of her first affidavit, her post recorded that those words were followed by the words “Something bad. Something unspeakable and that she doesn’t want to tell me what happened.” The inclusion of those words indicates to the Court that Annexure SK-01 was not intended to be a verbatim recording of what was said between she and Kruger at the time, but rather was an attempt to record what she said Kruger had said to her, as well as her having recorded what her own personal feelings were. So much is evident from a reading of the post.
Of further note is that though she italicised the words “Alan had sex with me”, she did not italicise the words “She said no & told him to stop”. The Court is unconvinced that those words were in fact said by Kruger. Even if they were said, the Court is not prepared to accept that what Kruger said was truthful.
On page 2 of annexure SK-01, after recording her thoughts about what she said she had been told, she recorded “I am lost, confused & so ducking mad I could kill Alan tonight. How could he do this to her & to my mum? … ” It is clear from that post that Salome was convinced about Thompson’s guilt. Her feelings about him were of disgust. She was not an impartial witness.
Salome was a witness in the District Court rape trial. Her Police statement is Exhibit 9. It is of note that in such statement she did not state that Kruger had said to her words to the effect that the sexual intercourse between her and Thompson was non-consensual.
In her second affidavit filed on 6 February 2024 at [15], she deposed that she recalled that candles had been lit on those stairs during the time she worked at Flaxton Gardens between 2017 and 2019. Relevantly, she did not identify the time when she recalled that the candles had last been put on the stairs during the period of her employment. Salome was not cross-examined about candles being on the stairs. Both Thompson and Mariana were specific about candles not having been placed on the stairs after 2017. The Court accepts the evidence of Thompson and Mariana on the question of candles not being on the stairs as at 12 – 13 January 2019.
Salome’s evidence about what she said Kruger said to her at about 4.30 am on the morning of 13 January was not probative of anything that Kruger said had occurred in the Bridal Suite earlier that morning.
No expert evidence was called on behalf of Kruger to comment upon what was recorded in SK-01. The Court finds that the evidence of Salome was of little weight.
CONCLUSION
The Court has not been persuaded that it should make findings consonant with either of the two versions respectively advanced by Kruger and Thompson.
The Court has doubts concerning each version. The Court was unable to come to a view that inferences able to be drawn from adduced evidence were such that one inference was more probable than the other. The Court has found, however, that at all times leading up to the time that Kruger and Thompson entered the Bridal Suite, Kruger did not find any of Thompson’s conduct toward her unwelcome. The Court is also unable to come to any concluded view, and is in doubt about, whether any post Bridal Suite conduct was unwelcome, based upon the Court’s doubts about what in fact occurred in that Suite. The onus in that regard has failed to have been discharged.
The applicant Kruger has failed to discharge the onus of proof which she bore.
In the light of such finding, it is unnecessary to deal with the question of compensation or damages.
The Originating Application is accordingly dismissed, and it is so ordered.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 13 September 2024
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