Federal Court of Australia

Kruger v Thompson [2025] FCAFC 143

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The proceedings are remitted to the Federal Circuit and Family Court of Australia (Division 2) for a new trial before a court that is differently constituted.

3.    On or before 31 October 2025, any party seeking an order for costs consequent on the appeal being allowed shall file submissions of no more than 3 pages specifying the order sought and the submissions advanced in support of the order.

4.    On or before 11 November 2025, the parties shall file any submissions in response on the question of costs.

5.    Unless otherwise ordered, the question of any order as to costs shall be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN AND ABRAHAM JJ:

1    This case involved alleged breaches of the Sex Discrimination Act 1984 (Cth) (SDA), whereby the first respondent, Mr Alan Thompson, was said to have engaged in unwelcome sexual advances within the workplace towards Ms Jana Kruger, his stepdaughter at the time, contrary to s 28B(6). The second respondent, the employer of Mr Thompson and Ms Kruger, Flaxton Gardens Pty Ltd, was alleged to be vicariously liable for Mr Thompson’s conduct, contrary to s 106(1). The alleged conduct occurred at a wedding venue in Flaxton, Queensland, where the second respondent conducted its business (the Premises). The primary judge dismissed the claim: Kruger v Thompson [2024] FedCFamC2G 883 (primary judgment (PJ)).

2    Ms Kruger alleged Mr Thompson sexually harassed her at the Premises physically and verbally between 12 and 13 January 2019, and verbally on 19 January 2019. The respondents admitted to Mr Thompson making sexual advances (being two kisses on the mouth and sexual intercourse on the night/early morning of 12/13 January 2019) which occurred on the stairs in front of and inside the Bridal Suite of the Premises, but advanced that it was consensual conduct. The respondents denied the verbal sexual advance on 19 January 2019. The focus of the hearing at first instance and in this Court, was on the events of 12 and 13 January 2019.

3    The primary judgment is summarised below in the reasons of McElwaine J and is unnecessary to repeat. Suffice to say the primary judge rejected the evidence of Ms Kruger and Mr Thompson with both being found to be unsatisfactory witnesses, such that the primary judge concluded he was unable to determine what happened in the Bridal Suite. As a result, his Honour found that Ms Kruger had not discharged her onus to establish her claim.

4    For the reasons below, the appellant has established ground 2 of the appeal. However, we consider that the appropriate order is that the matter is remitted for a new trial by another trial judge.

The appeal

5    The appeal is by way of rehearing and concerns challenges to factual findings made by the primary judge. Our task in conducting an appeal by way of rehearing is to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law: Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ), citing Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ) and Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 (Robinson v McDermott) at [43]. As described in Lee v Lee at [55]:

Appellate restraint with respect to interference with a trial judge’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”.

(citations omitted)

6    It is clear that error must be established, in the sense of showing that some aspect of the trial judge’s reasoning, or conclusions reached, are wrong: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [21]-[25]; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301 (Moroccanoil) at [45]; see also [4]-[7]. The identification of error remains indispensable, whether that be in relation to a step in the reasoning process, or even just by reason of the result arrived at: Moroccanoil at [49]; Lee v Lee at [56]. If the Full Court concludes that a judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings: Fox v Percy at [29]; Robinson v McDermott at [43].

7    This appeal is based on alleged factual errors identified in ground 2. Although the appellant alleges three grounds of appeal, to succeed it is necessary (although not necessarily sufficient) to establish ground 2. The parties accepted this ground as the focus of the appeal.

8    It is helpful to recite ground 2 in its entirety.

2.    In reaching the ultimate conclusion that the Appellant was not a credible witness at J[46] and J[85] and had not discharged her onus at J[86] and failing to find the matters set out in Appeal Ground 1, the primary judge erred:

a.    by finding that the Appellant was not extremely affected by medication/intoxication at J[37], J[41], and J[42], and by expressly finding at J[44] that the Appellant was “most likely a willing participant in her entry into the Bridal Suite with” the First Respondent, in circumstances where:

i.    there was no challenge to the Appellant’s evidence that she had taken:

1.    Zoloft (150mg);

2.    Diazapam (10mg);

3.    Melatonia; and

4.    Stilnox;

ii.    there was no challenge to the Appellant’s evidence that she had been drinking alcohol throughout the evening;

iii.    the evidence of Ms Mariana Kruger and Mr Benjamin Connolly (who were found by the primary judge to be witnesses of truth (PJ at [64])), was to the effect that the Appellant became inebriated as the evening wore on and that by about 1:00 am or 1:30 am (which is when Mr Connolly last saw her), she was struggling to walk properly, struggling to stand up and was slurring her words (PJ at [20]);

iv.    the evidence of Dr De Leacy, psychiatrist, was to the effect that:

1.    the combination of the Appellant’s medication with alcohol “would have a significant additive effect and a person in this situation would become extremely sedated, mentally, but physically compromised as well as because the blood pressure would have dropped…the person would feel weak, probably dizzy, as well as fatigued and possibly slightly confused”; but

2.    the Appellant could have “coped” with climbing the stairs by using the railing.

b.    by finding:

i.    at J[22] that none of the physical interaction between the Appellant and the First Respondent that was observed by Mr Connolly was unwanted, not appreciated, or not accepted, and

ii.    at [57] that the conduct between the Appellant and the First Respondent was “highly sexualised and consensual”,

relying entirely on Mr Connolly's opinion and his feelings of being made unconformable [sic] and there being no evidence from Mr Connolly that the alleged conduct was “highly sexualised”;

c.    by finding at J[25] that the Appellant’s conduct towards he [sic] mother, Ms Mariana Kruger, was sexualised in nature relying entirely on Ms Mariana Kruger's evidence that she was feeling uncomfortable;

d.    by finding at J[29] to J[34] that the Appellant’s evidence as to her movements after she returned to the residence, and her stated reason for returning to the Winery, was false;

e.    by finding at J[45], that nothing which occurred between the Appellant and the First Respondent up until the time they each entered the Bridal Suite was considered unwelcome;

f.    by, in effect, finding that the matters set out at J[47](a) to J[47](k) were relevant to the question of whether the Appellant consented to sexual intercourse with the First Respondent in the Bridal Suite on 12-13 January 2019;

g.    by drawing an adverse inference against the Appellant at J[47](m) for not calling her treating doctor to give expert evidence in the proceedings in circumstances where there was no proper basis to draw such an inference;

h.    by finding at J[58] that the Appellant and the First Respondent had the joint intention to go into the Bridal Suite with an amorous intent;

i.    by finding at J[61] that:

i.    if the events of 12-13 January 2019 had been traumatic or stressful to the Appellant, then “her memory of all claimed events would have been indelible or approaching indelible” based on a selective and narrow assessment of the evidence relevant to that issue;

ii.    that “whatever transpired in the Bridal Suite was neither stressful nor traumatic” to the Appellant and was not “unwelcome”;

j.    by finding at [65] that it was “implausible” and “bizarre” that the Appellant “would have agreed to have held her wedding reception at Flaxton Gardens if she had in fact been raped by” the First Respondent “at that very venue”; and

k.    by rejecting at J[79] and J[84], the evidence of Ms Salome Kruger that the Appellant informed Ms Salome Kruger on 13 January 2019 (almost immediately after the events in the Bridal Suite) that the First Respondent had sex with the Appellant and the Appellant had had [sic] told the First Respondent “no” and told him to “stop” but that she eventually gave in because she had no idea what was happening, when there was no proper basis for rejecting such evidence.

9    Grounds 1 and 3 are of a different nature. They assert error by the primary judge in failing to find the contraventions of the SDA established on the factual bases the appellant contended. The appellant submitted that if error is established in relation to ground 2, it necessarily leads to a finding of error in relation to grounds 1 and 3. We return to this below.

CONSIDERATION

10    In summary, by ground 2 the appellant identified what she described as a series of glaringly improbable factual findings or findings contrary to incontrovertible facts, that caused the primary judge to conclude that Ms Kruger was not a reliable witness, and as such had not discharged her onus of proof in relation to her claim: PJ [46]-[47], [85]-[86]. She submitted, inter alia, that the primary judge, without any proper basis: (1) rejected that Ms Kruger was as affected by medication/intoxication as she claimed; (2) found that on 12 January 2019, Ms Kruger engaged in conduct with Mr Thompson that was “highly sexualised” despite the evidence relied on not supporting that conclusion; and therefore, (3) found at [44] Ms Kruger was most likely a willing participant in entering the Bridal Suite with Mr Thompson with “such entry being consistent with both of them having accelerated to a higher level the already sexualised tensions evident between them that had made Connolly feel so uncomfortable” despite there being no evidence from Mr Connolly to support that finding.

11    Although the appellant argued this ground on the basis the impugned factual findings were glaringly improbable or contrary to incontrovertible facts, her submissions reflected she was also contending the primary judge did not approach his task by assessing all the relevant evidence when assessing Ms Kruger’s evidence.

12    It is not necessary to address each of the identified errors in ground 2 seriatim.

Intoxication

13    The primary judge found that Ms Kruger “was not as affected by medication or alcohol as she claimed” (which was that she was “extremely affected by medication/intoxication, or a combination of both”): PJ [41]-[42]. In his reasons, the primary judge did not refer to the detail of Ms Kruger’s evidence of her intoxication or the amount she had to drink. His Honour made the finding by reasoning that because Ms Kruger was able to climb the stairs to the Bridal Suite first (before Mr Thompson) without assistance, that suggested she was in control of her actions: PJ [41]-[42]. In making that finding, the primary judge appeared to dismiss Ms Kruger’s evidence that she took four different types of medication that night when she went to her room to get ready to go to bed, being Zoloft, Valium, Melatonia and Stilnox because there was no corroboration of her having taken the medication: PJ [28].

14    The appellant identified the evidence which she submitted was to the contrary. She submitted that in making the impugned finding the primary judge “ignored or failed to address incontrovertible evidence that clearly demonstrated that Ms Kruger was in fact inebriated”.

15    First, the appellant referred to her own evidence of the amount of alcohol she had consumed throughout the evening and of her having taken Zoloft, Valium, Melatonin and Stilnox that night. The appellant relied on the fact her evidence as to those matters was unchallenged. That may be accepted in so far as it relates to the amount of alcohol consumed and the fact of taking the medication. However, there was cross-examination of Ms Kruger on what medication she took that night with there being an issue as to whether she had taken Quetiapine. The primary judge acknowledged that she was “not seriously challenged” about taking medication but said at [47(d)] that her evidence on the medication she took was “vague and confusing”.

16    Second, her mother, Ms Mariana van der Westhuizen (whose evidence was accepted by the primary judge) gave evidence of the alcohol she saw her daughter consume. Ms van der Westhuizen said that at about 12.30 am or closer to 1.00 am on 13 January 2019, she told Ms Kruger it was time to go to bed, at which time she noticed Ms Kruger “seemed very tipsy but could walk by herself”: PJ [23]. This evidence was only referred to by the primary judge when he quoted part of Ms van der Westhuizen’s evidence.

17    Third, the evidence of Mr Connolly was that Ms Kruger was consuming alcohol, becoming heavily intoxicated and that by about 1.00 am or 1.30 am on 13 January 2019 (which is when Mr Connolly last saw her), she was struggling to walk properly, struggling to stand up and was slurring her words: PJ [20]. Mr Connolly accepted in cross-examination this was his evidence as recorded in his police statement dated 25 July 2020, despite it being inconsistent with his affidavit filed in the proceedings. Although this evidence is referred to by the primary judge, it was in a general description of Mr Connolly’s evidence (which was accepted by the primary judge), and not in any consideration of the topic of Ms Kruger’s intoxication.

18    Fourth, Ms Salome Kruger (Ms Kruger’s younger sister) also gave evidence that either late at night on 12 January or early in the morning on 13 January 2019, Ms Kruger came into her bedroom, appeared to be intoxicated, and Ms Salome Kruger had said to her words to the effect of that she “needed to go to bed and that she was drunk”. This evidence is not referred to in the primary judgment.

19    Fifth, Mr James Lindsay (Ms Kruger’s husband) gave evidence: Ms Kruger took Zoloft, Quetiapine and Diazepam (also known as Valium) every day; she also took Stilnox as needed and not every night; and she took those medications as prescribed and weaning until 2019. Again, this evidence is not referred to by the primary judge. Rather, the only aspect of Mr Lindsay’s evidence that was referred to by the primary judge was that he had told Mr Thompson that Ms Kruger took medication to help her sleep, but that the evidence of Mr Lindsay “was otherwise of little weight”: PJ [72]-[73]. We note also Mr Lindsay’s evidence is that Ms Kruger was prone to falling asleep after having taken her medication, including sometimes accidentally falling asleep on the couch. That evidence is consistent with what Ms Kruger describes occurred on 12 January 2019.

20    Sixth, Dr De Leacy, a psychiatrist who was called as an expert witness, also gave evidence that in January 2019 Ms Kruger was taking Stilnox, Sertraline (also known Zoloft), Diazepam and Melatonin, and on 12 January 2019 she was still prescribed those drugs. His evidence was that the alcohol in combination with Ms Kruger’s medication would have a significant additive effect, and

a person in this situation would be extremely sedated, mentally, but physically compromised as well as because the blood pressure would have dropped. The person would feel weak, probably dizzy, as well as fatigued, and possibly slightly confused.

21    Dr De Leacy’s evidence was that in those circumstances, by 1.00 am or 1.30 am after taking her medication, Ms Kruger “would have been ready to go to sleep”. As to Ms Kruger’s capacity to climb the stairs leading to the Bridal Suite considering her consumption of prescription medication and alcohol, Dr De Leacy opined that “she would have needed to use the railing … but probably could have made it with – could have coped with that with using a railing”. This evidence was not challenged. The evidence was the stairs had a railing. This evidence is not referred to by the primary judge in his reasons. However, this evidence has particular importance given Ms Kruger climbing the stairs without assistance was the basis of the primary judge’s finding as to her level of intoxication at [42].

22    Even leaving aside Dr De Leacy’s expert opinion, it is difficult to understand how the primary judge could make a finding that Ms Kruger “was not as affected by medication or alcohol as she claimed she was”, based on the fact she ascended the stairs by herself: PJ [42].

23    Ms Kruger’s evidence was that she left the Winery to go to bed but later returned looking for her mother. By that time, Ms Kruger had taken her medication in preparation for going to bed. Ms Kruger’s evidence is that after she returned to the Winery at the Premises where Mr Thompson and Mr Connolly were, and having taken her medication, she fell asleep on the couch. After awakening, she felt extremely affected by the medication, disoriented, her vision was blurred, and her body felt heavy. She was physically and mentally compromised. Ms Kruger’s evidence is that she remembers being at the top of the stairs. That description given by Ms Kruger of her condition is consistent with Dr De Leacy’s evidence (recited at [20] above) of the impact the combination of alcohol and medication would have on her. The primary judge did not refer to this aspect of Dr De Leacy’s evidence.

24    Rather, the primary judge only referred to one aspect of Dr De Leacy’s evidence, being how stressful events are more readily registered and retained, to conclude at [61] 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” (emphasis added). His Honour relied on that, in the context of his findings (e.g. that Ms Kruger’s evidence was unsatisfactory, vague and imprecise), to conclude “that whatever transpired in the Bridal Suite was neither stressful nor traumatic to her. It was not unwelcome”: PJ [61]. It is trite to observe that not all events that evening were traumatic or stressful, nor does that passage from the primary judgment accurately reflect the opinions expressed by Dr De Leacy. Rather, this aspect of Dr De Leacy’s evidence was considered by the primary judge in isolation of the remainder of his evidence, and other opinions expressed. Nonetheless it is apparent the primary judge considered Ms Kruger’s evidence in that context and through that prism. His Honour did so, without apparent regard to the evidence of the level of Ms Kruger’s intoxication (and the effect of the medication). That was plainly incorrect.

25    Pausing there. Even this brief recitation of other evidence from the trial reflects that there was evidence before the primary judge consistent with Ms Kruger’s evidence that she was extremely intoxicated and affected by her medication at the time of the events in the Bridal Suite. It is helpful to return to the primary judge’s findings in relation to intoxication, the extent of which is at [41] to [42]:

[41]    Fourth, if Kruger at the time was extremely affected by medication/intoxication, or a combination of both, as claimed by her, the Court finds that it was improbable that Kruger would have climbed the two (2) reasonably steep flights of stairs for any purpose other than to pursue something private with Thompson associated with the Bridal Suite.

[42]    Fifth, the evidence of Kruger was that it was she who first arrived at the top of the stairs, and that Thompson had followed her. Having found that Kruger had ascended the stairs for a purpose related to entry into the Bridal Suite, the Court finds that Kruger was not as affected by medication or alcohol as she claimed she was. The fact that Kruger was able to ascend the stairs by herself – there was no evidence that she needed assistance to do so – points to her being in physical control of what she was doing at the time.

26    There is no properly articulated basis by the primary judge for not accepting Ms Kruger’s evidence of her intoxication. Ms Kruger’s ability to climb the stairs being the only reason provided. Otherwise, the reasoning appears to be based on findings about Ms Kruger’s conduct (and reasons for her conduct) which occurs without any consideration of Ms Kruger’s intoxication (with the medication), and what impact, if any, it may have had on her conduct. There also appears to have been no consideration by the primary judge of the other evidence of Ms Kruger’s intoxication/medication supporting Ms Kruger’s evidence of her intoxicated state, in this portion of the judgment, or elsewhere. The appellant has established that in making the finding about Ms Kruger’s medication/intoxication at [41] and [42], the primary judge failed to address relevant evidence, much of which was unchallenged. The finding is inconsistent with the evidence.

27    There are other issues in relation to the impugned finding. Although the primary judge found that Ms Kruger’s level of intoxication was not as she claimed, there is no finding as to her level of intoxication (including the combined effect of the medication). Intoxication is relevant to the assessment of Ms Kruger’s evidence. There is no reference to it being considered by the primary judge in assessing her evidence, or when his Honour made findings as to her evidence of the events she said occurred on 12/13 January 2019.

28    The respondents submitted that in the trial, the evidence of intoxication was only relevant to the objective limb of s 28A of the SDA, not the subjective limb. It was said, in that context, it was not surprising that intoxication did not feature heavily in the primary judge’s reasons. It is entirely unclear from the transcript of the hearing below what the purported limitation on the evidence was said to be. The appellant said the concession below only related to Ms Kruger not contending that she was so intoxicated that she could not consent to the conduct. That said, the evidence of intoxication was before the primary judge, cross-examined on, the primary judge accepted both Ms Kruger and Mr Thompson were intoxicated at the time of entering the Bridal Suite at [52] and made a finding (albeit limited) on Ms Kruger’s intoxication at [42]. Given the circumstances, the relevance of the evidence could not be limited in any manner other than that identified by the appellant. It was plainly relevant.

29    It is well understood that intoxication can affect, inter alia, decision-making. It can affect memory. It can affect a person’s actions. It is relevant to the primary judge’s conclusions as to whether certain acts were, as he concluded, improbable or implausible. Although the respondents during the appeal ultimately accepted that intoxication was relevant to the assessment of Ms Kruger’s credibility, they stopped short of accepting it was relevant to the assessment of Ms Kruger’s actions on the basis that relates to her intent. The submission as to intoxication not being relevant to intent cannot be accepted. That submission was made ostensibly to overcome the apparent lack of consideration by the primary judge of this evidence. The ultimate factual conclusions reached by the primary judge (which led to the conclusion that the appellant had not discharged her onus), as highlighted by the respondents in their submissions, are matters which largely involved an assessment of Ms Kruger’s evidence. Resolution of those matters necessarily should have been in the context of and in consideration of the evidence as to Ms Kruger’s level of intoxication (including the combined effect of the medication taken). Despite the primary judge’s conclusions about Ms Kruger’s intoxication/medication at [42], his Honour did not otherwise refer to this evidence. Given its relevance, that evidence would have been expected to have been referred to by the primary judge if it had been considered in assessing Ms Kruger’s evidence and actions. It is apparent the effect of intoxication (with the medication) was not considered by the primary judge in assessing Ms Kruger’s evidence and reaching the various factual findings he made. The failure to do so infects other factual findings relating to Ms Kruger and her evidence.

30    The error established in the factual finding at [42], and the primary judge’s failure to consider the evidence of intoxication (with the medication) is significant.

Highly sexualised conduct

31    The primary judge found that Ms Kruger engaged in “highly sexualised” conduct with Mr Thompson: PJ [57]. This was based on the evidence of two witnesses, Ms van der Westhuizen and Mr Connolly: PJ [21], [25]. Properly read, the evidence does not support that conclusion.

32    Ms van der Westhuizen’s evidence, at its highest, was that she felt uncomfortable as Ms Kruger was getting “sexy” and/or “inappropriate” when she was dancing with her. Ms van der Westhuizen’s evidence does not relate to any conduct by Ms Kruger towards Mr Thompson. Ms van der Westhuizen does not give evidence of observing any of the conduct that Mr Connolly described had occurred.

33    Mr Connolly gave evidence he felt uncomfortable due to Ms Kruger briefly sitting on his lap, and her and Mr Thompson’s interactions which he perceived to be consensual and sexualised. He referred to there being a “sexual element” particularly when Mr Thompson’s hand was on Ms Kruger’s leg. But, as accepted by Mr Thompson’s counsel, Mr Connolly’s evidence was not that the conduct was “highly sexualised”. Nonetheless that evidence led the primary judge to conclude at [44] and [57] that:

[44]    … Kruger was most likely a willing participant in her entry into the bridal suite with Thompson … such entry being consistent with both of them having accelerated to a higher level the already sexualised tension evident between them that had made Connolly feel so uncomfortable.

…

[57]    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.

34    The conclusion at [44] was also based on other findings his Honour had made (i.e. those relating to Ms Kruger ascending the stairs to the Bridal Suite). Notwithstanding that, the evidence before the primary judge could not properly be characterised as establishing a sexual tension or there having been “highly sexualised” interactions between Ms Kruger and Mr Thompson.

35    Although it was conceded during the appeal hearing that the evidence was not of “highly sexualised” conduct, the respondents nonetheless advanced in written submissions that there had been ample evidence before the primary judge to find the conduct was “highly sexualised” referring to the affidavit evidence, police statements and oral evidence of Mr Connolly and Ms van der Westhuizen. They submitted the finding was open on a combination of the impressionistic evidence about the sexual element, the discomfort of both witnesses and their observations. That submission misconceives the nature of the evidence which does not provide a proper foundation for the primary judge’s conclusion.

36    Given the basis of the primary judge’s finding, the appellant has established his Honour erred in finding Ms Kruger engaged in “highly sexualised” conduct with Mr Thompson”: PJ [57]. This finding was critical to the reasoning of the primary judge to then conclude that before entering the Bridal Suite, it was the joint intention of Ms Kruger and Mr Thompson to enter the suite “with … amorous intent”: PJ [58].

37    Before leaving Mr Connolly’s evidence on this topic, it is appropriate to observe that during the cross-examination of Mr Connolly about the level of Ms Kruger’s intoxication (which is recited by the primary judge at [20] in his consideration of Mr Connolly’s evidence), he gave evidence that:

… 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 …

That answer read in context reflects there is a time difference. That is, the acts Mr Connolly described that made him uncomfortable were not at the end of the night, but earlier. That is also consistent with Mr Connolly’s police statement, which was in evidence before the primary judge. The primary judge does not refer to this time difference, but rather the implication in his reasons is that Mr Connolly’s observations of Ms Kruger and Mr Thompson occurred at a time shortly before he left the Premises (or at the very least, when Ms Kruger returned to the Winery after her mother had left).

Salome Kruger

38    The appellant challenged the primary judge’s approach to the evidence of Ms Salome Kruger. The primary judge generally concluded that the evidence of Ms Salome Kruger was of little weight: PJ [84]. There are three aspects to the evidence. First, that Ms Kruger entered Ms Salome Kruger’s room and took away a pillow, which is when she observed Ms Kruger’s level of inebriation (discussed above at [18]). Second, that 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”: PJ [76]. Third, that thereafter Ms Kruger made a complaint to Ms Salome Kruger of what occurred with Mr Thompson.

39    The first two topics, of which there is no dispute, are significant. The first, getting the pillow, supports Ms Kruger’s evidence in relation to going to bed at an earlier time in the night/following morning (before looking for her mother). It is also consistent with Ms Kruger’s evidence that it was her intention to do so at the time. The second, evidence of Ms Kruger’s distress, without more, is consistent with what Ms Kruger described in evidence as having occurred. A traumatic event. Despite neither of those matters being in issue, the primary judge did not take them into account in assessing what had occurred that evening. More particularly, it is inconsistent with the primary judge’s conclusion as to the circumstances in which Ms Kruger entered the Bridal Suite (i.e. with amorous intent). It is probative of what occurred in the Bridal Suite. This is in a context where Mr Thompson’s evidence was that not only was Ms Kruger a willing participant in the act, but it was she who raised the topic of the conduct between them going further.

40    As the High Court recently observed in The King v Ryan Churchill (a pseudonym) [2025] HCA 11 (Churchill) at [26]:

Though it is conceivable that circumstances might exist in which evidence of distress on the part of a complainant when making a complaint [of sexual assault] is not relevant, those circumstances must be rare.

41    A complainant may, but will not necessarily, display outward signs of distress after the assault. Evidence of distress tends to prove that the complainant had been sexually assaulted: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [78]; Churchill at [25] and [27]. So too, evidence of a complaint: Churchill at [27].

42    On the third topic, Ms Kruger’s statement to her sister, the primary judge placed no weight. His Honour found this aspect of Ms Salome Kruger’s evidence “was not probative of anything that Kruger said had occurred in the Bridal Suite earlier that morning”: PJ [83]. There was a note written by Ms Salome Kruger of that conversation in the form of a diary entry to post to a private page on her Tumblr account. The accuracy of the content of the Tumblr post was the subject of cross-examination. The primary judge’s limited reasoning of the conversation fails to grapple with the distressed state that Ms Kruger was in at the time the conversation occurred. Even if the Tumblr post is not verbatim of the conversation that took place, it is consistent with Ms Salome Kruger’s evidence that Ms Kruger was in a distressed state at that point in time.

43    The primary judge concluded at [79] that:

though she [Ms Salome Kruger] 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.

44    This appears to be a reference to Ms Salome Kruger’s affidavit. However, the Tumblr post annexed to the affidavit has no text in italics. That limited reasoning is artificial. Further, this conclusion reflects that the evidence of Ms Salome Kruger was not considered together with other evidence in assessing what had occurred on 12/13 January 2019 but rather was considered after the primary judge had already made factual findings about relevant matters, including the circumstances in which Ms Kruger went into the Bridal Suite (i.e. with amorous intent). That is because there is no other basis on the evidence (or in the reasons) to conclude that if said, Ms Kruger was not being truthful. That approach is incorrect.

45    The Tumblr post is detailed. It is dated 5.50 am on 13 January 2019. Ms Salome Kruger’s evidence was that she wrote this about an hour after her sister came into her room. Although it was put to Ms Salome Kruger that the entry has been edited by her to include other details after that day, she denied it. There is no evidence of the post having been altered. The primary judge notes Ms Salome Kruger’s police statement in his reasons at [81] and that it does “not state that Kruger had said to her words to the effect that the sexual intercourse between her and Thompson was non-consensual”. However, her police statement refers to the fact she can produce the Tumblr post, and so the content of the statement is to be considered in that regard. The primary judge does not address the fact she said she was able to produce the Tumblr post.

46    As noted above, the primary judge’s conclusion about Ms Salome Kruger at [83] is that:

[her 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.

47    That conclusion is difficult to understand in the circumstances. The evidence of recent complaint about what had occurred between Ms Kruger and Mr Thompson, and Ms Kruger’s distress, is significant in assessing Ms Kruger’s evidence of the events in the Bridal Suite. That is particularly so when there is also a contemporaneous record that supports that complaint occurring (being the Tumblr post). The appellant has established the primary judge erred in rejecting the evidence of Ms Salome Kruger.

Failure to call Dr Martin

48    The primary judge drew an adverse inference against Ms Kruger for failing to call Dr Martin (her treating doctor at the time) to give evidence: PJ [47]. Ms Kruger had called an independent expert psychiatrist, Dr De Leacy, to give evidence about her psychiatric injury arising from Mr Thompson’s conduct. That is relevant because the primary judge states that the relevance of Dr Martin would be he could give cogent evidence about the medication prescribed for Ms Kruger (dosages, frequency etc), the effect of a combination of the drugs and alcohol, and her conditions. These are all matters on which Dr De Leacy gave evidence. The rule in Jones v Dunkel does not require a party to give repetitive or cumulative evidence and accordingly, it was not open to the Court to draw any such inference simply because Dr Martin was not called to give evidence about the same issue: Manly Council v Byrne [2004] NSWCA 123 at [61]-[67]. Moreover, the primary judge has not grappled with the concept underlying Jones v Dunkel. The rule is that the unexplained failure of a party to give evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party’s case, so entitling a court to more readily draw an inference against that party: Jones v Dunkel [1959] HCA 9; (1959) 101 CLR 298 at 308, 312, 320-321; Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [353]. The primary judge has not identified the inference that could be more readily drawn.

Wedding reception

49    The primary judge found at [65], that “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”. There was a dispute in the evidence as to why the wedding was held at the Premises. Ms Kruger’s evidence was that it was at her mother’s insistence, and she felt that she had to agree. Her mother gave evidence that Ms Kruger wanted the wedding to be held there. Ms Kruger’s evidence is not referred to by the primary judge. His Honour only referred to the evidence of Ms van der Westhuizen. The dispute ought to have been resolved, given the primary judge relied on the location of the reception to make an adverse finding against Ms Kruger. The reason for the location of the wedding was relevant to determining that issue. Regardless, the conclusion at [65] appears to be based on the proposition that a victim of rape would not act that way. That is to act on a preconception of how a victim would act, not on any evidence in the hearing. That approach is incorrect.

Remaining bases

50    Finally, the appellant referred to several other findings relied on in support of this ground (see [8] above). It suffices to refer to one example. The primary judge found that Ms Kruger’s explanation for her movements after she returned to the residence and her reason for returning to the Winery as implausible, and that her motive for returning to the Winery was to continue socialising: PJ [29], [34]. However, that finding was reached without a consideration of Ms Kruger’s intoxication or medication. In that context, the timing analysis undertaken by the primary judge from [30] to [33] in support of those conclusions does not withstand scrutiny. Further, Ms Kruger’s evidence of having taken medication in preparation of going to sleep puts her actions in a different context (noting it was not challenged that she took the medication). We also observe that while Ms Kruger was criticised for going to look for her mother, Ms van der Westhuizen’s affidavit evidence was that she went looking for Ms Kruger, including in the Winery area (without finding her).

51    It is unnecessary to address each of the complaints identified in ground 2. The matters referred to above are sufficient to establish error in the primary judgment. The errors impacted the assessment of Ms Kruger’s evidence. The appellant has established ground 2. In circumstances where the assessment of Ms Kruger’s evidence was central to the determination of her claim, the appeal should be allowed.

Redetermination or remittal

52    As referred to above, the appellant submitted that if error is established in relation to ground 2, it necessarily leads to a finding of error in relation to ground 1. In that circumstance, it was submitted the Court should redetermine the matter in favour of Ms Kruger. That is because the consequence of ground 2 being established is said to be that Ms Kruger’s evidence would not be treated as unreliable. In a context where the primary judge’s findings in relation to Mr Thompson’s evidence being unreliable would remain (as there is no notice of contention on that topic challenging them), the appellant submitted that Ms Kruger’s account must be accepted. That is, the Court is left with her evidence, and that of Mr Connolly, Ms van der Westhuizen, and Ms Salome Kruger, as to the events that occurred on the 12/13 January 2019. The appellant submitted that:

if one examines that evidence, in the absence of anything from Mr Thompson, it’s abundantly clear that the findings set out in ground 1 of the amended notice of appeal ought to have been made. Because once you accept Ms Kruger as being a credible witness, and there being no challenge to Mr Thompson not being a credible witness, Ms Kruger must succeed on appeal ground 1.

53    Ground 1 alleges the primary judge erred in failing to find that certain conduct of Mr Thompson occurred that constituted contraventions of the SDA. The conduct listed is based on the evidence of Ms Kruger and is framed as one of the declarations sought by the appellant in her claim. That conduct is confined to the acts of Mr Thompson relied on to establish that sexual harassment occurred.

54    That approach is simplistic and fails to grapple with the consequences of ground 2 being established. To establish ground 2, the appellant must satisfy the Court that errors occurred. It can readily be accepted, as explained above, that errors occurred in the primary judge’s approach to assessing Ms Kruger’s evidence. It does not necessarily establish the affirmative, being that Ms Kruger was a credible and reliable witness, or that each of the facets of Ms Kruger’s evidence must be accepted. That involves an assessment of Ms Kruger’s evidence, in the context of all the relevant evidence.

55    The appellant’s submissions (and amended notice of appeal) do not detail the factual findings sought, or the basis of the reasoning process sought to be undertaken by the Court to make those findings. That includes the approach to be taken in respect of witnesses’ evidence (i.e. if the Court is to accept the primary judge’s findings or make alternate findings). The Court is only referred to the ultimate findings of fact the appellant contends should have been made to determine the first respondent contravened the SDA. The submission appears to be premised on the basis that after accepting Ms Kruger’s evidence, the Court then relies on the other factual findings made by the primary judge (which are said to be unchallenged). However, those findings include, inter alia, an acceptance of the evidence of Mr Connolly and Ms van der Westhuizen, which at times is inconsistent with the evidence of Ms Kruger. It may be that ultimately is of no moment, but again, that involves an assessment of all the relevant evidence. The facts are not undisputed. Rather, the appellant simply submitted:

In conducting its “real review” of the evidence, it is respectfully submitted that the Court should conclude that: (a) Ms Kruger was a witness of credit; (b) the matters set out in Appeal Ground 1 occurred, were unwelcome and constituted contraventions of s.28B(6) of SD Act; and (c) the factual findings relied on to find against Ms Kruger on the question of her credit are glaringly improbable and inconsistent with incontrovertible established facts.

56    Significantly, the Court does not have all the material from the trial before it, nor any submissions by the parties as to its assessment. It is trite to observe that if an appellant seeks to have the Court redetermine a case, it is necessary to provide the basis to enable the Court to do so.

57    Although it was accepted by the respondents during the appeal that if the Court were to redetermine the issues, it would approach the issues in the context of there being an adverse finding in relation to Mr Thompson, the submission was less than clear. There was an attempt by the respondents to limit that finding to what occurred in the Bridal Suite, but the primary judge does not do so. One only needs to refer to Mr Thompson’s evidence as described and quoted by the primary judge in relation to who first raised the sexual interactions “going further”: PJ [51(d)]. His evidence on that topic was inconsistent, with his explanation for that being unsatisfactory and unconvincing. It is not surprising there was no notice of contention.

58    However, as will have been evident from the discussion of ground 2 above, at its heart, the primary judge’s reasoning demonstrates that his Honour did not consider relevant evidence in his assessment of Ms Kruger’s evidence. That includes the evidence of Ms Kruger’s intoxication combined with the effect of her medication and the evidence of Ms Salome Kruger. This is a case where the error of the primary judge in assessing Ms Kruger’s evidence was central to the outcome of her claim. Whether Ms Kruger’s version of events is to be preferred to Mr Thompson’s in respect of the relevant issues requires a proper consideration of all the relevant evidence.

59    Regrettably, in our view, that is a task we are unable to undertake for the following three reasons.

60    First, as we have mentioned, the factual appeal was conducted on a very limited basis. The Court was not taken to all of the evidence that might bear upon the findings that the Court would be required to make, in lieu of the findings by the primary judge, if the declarations sought were to be made on appeal. Nor were any submissions made as to the assessment of the underlying evidence. Instead, in effect, it was contended that error in the factual findings as to the credibility of Ms Kruger would be a sufficient basis to conclude that her account as to key events must be accepted. For reasons we have given, that approach was not correct. What follows is to be considered in that context.

61    Second, as we have explained, the resolution of the issues requires views to be formed about the credibility and reliability of the oral testimony of a number of witnesses, including Ms Kruger. Whilst we have concluded that the approach by the primary judge as to fact finding was in error in fundamental respects, including as to the foundation for reaching conclusions as to the credibility of Ms Kruger (and by disregarding other evidence), we have not concluded that the rejection of Ms Kruger’s account was glaringly improbable or contrary to incontrovertible facts. We accept that there is much to support the credibility of Ms Kruger’s account of her level of intoxication at the time. There is also the evidence of recent complaint given by Ms Kruger’s sister, together with the contemporaneous record in the form of the Tumblr post, with much to indicate that such evidence should be accepted. Coupled with the flaws in the reasoning by the primary judge as to his finding of highly sexualised conduct and the absence of any case beyond the events of that evening that is said to provide a rational basis for Mr Thompson, as Ms Kruger’s stepfather, to conclude that Ms Kruger would be a willing participant in sexual activities between them, these are all matters which point powerfully to an absence of consent by Ms Kruger. Further, there was no real attempt on appeal to support the credibility of Mr Thompson’s account, so his evidence as to consent may be taken to have been rejected. However, despite this, we are unable to reach the affirmative conclusion on appeal that the critical evidence of Ms Kruger must be accepted as credible and reliable. In part, that is because a conclusion of that kind would require acceptance of the testimony of other witnesses in respect of whom the primary judge provided no reasoning as to their credibility, most notably Ms Salome Kruger, but also Mr Lindsay. However, it is principally because a conclusion of that kind would require a finding on appeal that the oral testimony of Ms Kruger as to key events must be accepted in circumstances where her case depends upon the credibility and reliability of that account.

62    Third, the seriousness of the findings that the Court is invited to make must be kept in mind and is a matter that counts against the Court being able to find on appeal without having heard the oral testimony of Ms Kruger, that her account ought to be accepted.

63    It follows that, given the errors established, the matter should be remitted to another judge to conduct a new trial. The Court will hear from the parties as to the terms of any order as to costs.

Associate:

Dated:    17 October 2025

MCELWAINE J

Synopsis

64    Ms Jana Kruger is the daughter of Ms Mariana Ven Der Westhuizen. In the time period relevant to the events in this matter, Mariana was married to Mr Alan Stanley Thompson, with the consequence that he was the step-father of Jana. In the evening of 12 and the early hours of 13 January 2019, Jana claims that she was raped by Alan in the Bridal Suite of a wedding reception business known as Flaxton Gardens operated by Flaxton Gardens Pty Ltd, when she had the status of a workplace participant within the meaning of s 28B of the Sex Discrimination Act 1984 (Cth) (SDA) as it was at the time. (Each reference to a provision of the SDA is to the statutory form as at January 2019). Alan was a director and agent of Flaxton Gardens Pty Ltd at the time.

65    In my reasons I mean no disrespect to any of the family members by referring to each by their first name only. In addition to Jana, Mariana and Alan there is Salome (Sam) Kruger who is the younger sister of Jana and James Lindsay who is the husband of Jana. I likewise refer to Mr Benjamin (Ben) Connolly, an independent witness, by his first name.

66    In December 2022, Jana commenced a proceeding against Alan and Flaxton Gardens Pty Ltd in the Federal Circuit and Family Court of Australia (the Circuit Court) on the basis that she had suffered unlawful discrimination within the meaning of s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (Commission Act). Jana sought declaratory relief that Alan and Flaxton Gardens Pty Ltd had contravened ss 28B and 106 of the SDA and in consequence she claimed compensation pursuant to s 46PO of the Commission Act.

67    In broad summary, Jana claimed that she attended Flaxton Gardens on 12 January 2019 to perform work duties for an event known as the Summer Showcase and her responsibilities included the taking of photographs of the event. The premises at Flaxton Gardens comprised multiple areas, including a function room known as the Winery, the Bridal Suite, and the residence, where Alan and Mariana resided at the time. Jana intended to sleep in the residence at Flaxton Gardens that evening. At the time, Jana was on a course of prescribed medication to assist her with insomnia and to address the sequelae of childhood sexual abuse that had been inflicted on her by a family member. The consumption of alcohol featured prominently as part of the Summer Showcase event and continued well after its conclusion. Jana consumed alcohol, as did Mariana and Alan, amongst others. Late in the evening of 12 January 2019, Jana found herself seated at the top of a flight of stairs within Flaxton Gardens, to which there was a door leading to the Bridal Suite. She was intoxicated at the time. She alleges that Alan sat next to her and expressed, in various ways, his love for her and his desire that she be his “lover on the side”. On her case, she resisted Alan’s amorous advances.

68    Jana further claimed despite that she was not a willing participant in the conduct of Alan, he then without her consent kissed her on the mouth. On her case, Alan ignored her resistance and went further. He opened a locked door leading to the Bridal Suite and led her to the bed therein. Jana contends that she further resisted, but once again Alan ignored her. There was more unwanted kissing by Alan and then, without her consent, he undressed her, performed oral sex on her and had intercourse with her, despite her telling him on more than one occasion: “I don’t want this” and “I just want to go to sleep”.

69    Jana further claimed that there was other unwanted conduct engaged in by Alan in the early hours of 13 January 2019, and in the days thereafter.

70    In various ways, Jana contended that the conduct of Alan amounted to an unwelcome sexual advance, unwelcome conduct of a sexual nature and/or sexual harassment within the meaning of s 28B of the SDA. She pleaded the vicarious liability of Flaxton Gardens Pty Ltd pursuant to s 106(1) of the SDA, on the basis that Alan was a director and agent of it.

71    Alan denied that he engaged in oral sex with Jana, but admitted having had intercourse with her. On his version of the events, the intercourse was consensual; as was the foreplay and he denied that any statement had been made by Jana to the effect that she did not consent to his advances or, ultimately, to the act of intercourse.

72    Alan was ultimately charged by officers of the Queensland Police Service with the rape of Jana. He was arraigned before a jury trial in the District Court of Queensland in November 2021. He did not give evidence at his trial. The jury returned a verdict of not guilty.

73    Jana’s proceeding in the Circuit Court was heard by Judge Egan over four days in May 2024. For reasons published on 13 September 2024, his Honour dismissed the proceeding: Kruger v Thompson [2024] FedCFamC2G 883 (PJ). His Honour was not satisfied that Jana had discharged her onus of proof.

74    On 11 October 2024, Jana filed a notice of appeal against the dismissal of her proceeding. Later she sought and was granted leave to rely on an amended notice of appeal. For the detailed reasons that follow I also would allow the appeal and set aside the order of the primary judge. Differing from the reasons of Colvin and Abraham JJ, I would also uphold ground 1 of the appeal, grant declaratory relief and award compensation in favour of Jana. I explain in detail why I consider that the evidence permits this Court to make the required material findings of fact to grant that relief.

The material issues before the primary judge

75    Jana and Alan filed detailed pleadings and affidavits which set out their respective versions of the events.

76    Jana pleaded her case in the form of her Amended Statement of Claim dated 20 May 2024. The essential facts that she relied on to establish her case of sexual harassment within the meaning of s 28A of the SDA may be summarised as follows. On 12 January 2019, Jana performed work at Flaxton Gardens as a contract worker and was a workplace participant: s 28B of the SDA. Following the conclusion of the of the Summer Showcase event she remained at Flaxton Gardens and socialised with Mariana and Alan. Another person, Ben also remained at Flaxton Gardens. Jana consumed some alcohol. She departed the venue at around midnight, went to the residence and took her prescribed medication. The medications were taken to assist her to sleep and in consequence of childhood sexual abuse perpetrated by a family member that she had suffered. She then returned to the venue where Ben and Alan remained.

77    After Ben left Flaxton Gardens, Jana was seated at the top of a flight of stairs. Alan sat next to her and said to her words to the effect of: “I’m in love with you”, “I wish things turned out differently and I could be with you”, “we’re perfect for each other”, that he wanted her to be his “lover on the side”, and that “I have loved you for a very long time and I have wanted this for years now” and that he wanted her “on the side”.

78    Jana responded with words to the effect of: “If you’re wanting a relationship with me, you will end up like your stepfather” (a reference to the stepfather of Alan having sexually abused Alan’s sisters); “What! I don’t agree”; “obviously you don’t mean that” and “you should go back to your wife”. Thereupon, without consent, Alan kissed her on the mouth.

79    Alan then guided Jana into the Bridal Suite and sat her down on the bed and said to her words to the effect of: “I want to go further with this”, to which she responded: “I just want to go to sleep”.

80    Alan then closed and locked the door to the Bridal Suite and sat next to Jana on the bed. He again kissed her on the mouth without her consent. She responded with words to the effect: “I don’t want this”. Alan then removed her dress and her underwear, leaving Jana naked. He removed her tampon. He then performed oral sex on her. Again, Jana said words to him to the effect: “I don’t want that” and to which he responded “I just want to make you feel good”.

81    Alan then had sexual intercourse with Jana without her consent. When he was done he fell asleep and Jana dressed and went to her bedroom in the residence. Alan followed her and said words to the effect: “I want to tuck you in”.

82    On 13 January 2019, Jana returned to Flaxton Gardens for work and Alan greeted her with: “Morning Gorgeous”. Jana did not stay at the workplace for very long that day.

83    On or about 19 January 2019, Jana, at the request of Mariana, engaged in a discussion with Alan to the effect that he said to her: “Well this is tough. Honestly, I was disappointed when you told your mum. We could have had something between us”, to which Jana replied: “She deserved to know. What did you tell her?” and he responded: “Obviously I had to play the I don’t remember card”.

84    Jana pleads that the conduct of Alan amounted to an unwelcome sexual advance or unwelcome conduct of a sexual nature in circumstances where a reasonable person would have anticipated that she would be offended, humiliated or intimidated and that in consequence, he engaged in unlawful sexual harassment contrary to s 28B(6) of the SDA.

85    Alan admits that he had intercourse with Jana, denies that he performed oral sex on her and pleads his case to the effect that Jana consented. In his defence dated 8 March 2023, he pleads a positive case which may be summarised as follows. Prior to 12 January 2019, he and Jana enjoyed an emotionally intimate relationship during which they would confide in each other. When Jana returned to Flaxton Gardens at approximately 12:45 am on 13 January 2019, she sat in his lap when Ben was still present. They then cuddled in “a physically intimate way”, including placing his hand in her lap and her placing her hand on top of his.

86    Ben departed at approximately 1:30 am and thereupon Alan and Jana were alone. During that period they were seated on a couch, at times Jana was seated in his lap; they engaged in intimate conversations; he massaged her shoulders; she removed her shoes and rested her legs in his lap, he massaged her feet and Jana said words to the effect that she was enjoying the massages “a lot”. Later, Jana rearranged her dress to allow Alan to massage her legs and thighs. Jana then said words to the effect that she was “feeling very excited by the massage”; “are you actually intending to create a sexual feeling” and “are you wanting this to go further sexually”, to which Alan responded with words to the effect that he was “comfortable going further if [she] was happy to”.

87    They engaged in a conversation about the possible consequences of proceeding further sexually, each acknowledged that they were adults and they “kissed for some time”, engaged in intimate fondling and Jana opened or rearranged her dress to expose her breasts and underwear and made comments to the effect that “the kissing and fondling felt good”.

88    Having engaged in that conduct, they then ascended a set of stairs leading to the Bridal Suite and sat on the top rung. They engaged in more kissing and intimate fondling. Alan asked Jana if she was “sure she wanted to go into the Bridal Suite”, and she said that she was. They entered the Bridal Suite and undressed. Alan noticed that Jana had a tampon inserted in her vagina to which he said words to the effect: “looks like you have a rat tail hanging out” and she responded to the effect: “it is okay as I am finished bleeding” and “it is clean”. Jana then entered the ensuite bathroom and placed the tampon into a rubbish bin.

89    On her return, Alan said to her words to the effect: “are you comfortable with this” and “do you want this”, to which she responded: “yes” and “I need this”. They then got into bed. They engaged in sexual intercourse. Alan had difficulty and said words to the effect: “I’m sorry but I cannot finish” to which Jana responded to the effect: “that’s okay”. Alan then rolled over and fell asleep. He awoke at approximately 4:00 am, walked back to the residence and entered the bedroom that he shared with Mariana and went to sleep.

Understanding the evidence

90    One unsatisfactory aspect of the reasoning of the primary judge is that he made findings as to why parts of the evidence of Jana and Alan could not be accepted and ultimately concluded that he could not make findings congruent with the evidence of either, but did not set out their respective evidence-in-chief. To understand his Honour’s reasons and the grounds of appeal, I commence with the cases in chief.

Jana’s evidence

91    What follows is taken from Jana’s primary affidavit made on 29 August 2023. In 2019, she was 25 years of age and Alan was 49. He had married Mariana later in life. Jana has two siblings, Sam and Mr Johan Kruger. When Jana was between the ages of four and seven years, she was subjected to sexual abuse when in South Africa by the husband of Mariana’s sister. She did not disclose that abuse for many years. She did in 2013, when she first met her future husband, James. Ultimately, she was diagnosed as suffering from post-traumatic stress disorder (PTSD) with anxiety and depressed mood symptoms in consequence of the sexual abuse.

92    Jana was employed by a third-party contractor and, in that capacity, she attended Flaxton Gardens to perform work on 12 January 2019. Appreciating that the Summer Showcase event may run late, she intended to sleep in a bedroom at the residence at Flaxton Gardens which is something that she had done on previous occasions. Alan and Mariana occupied the residence.

93    Late in the evening of 12 January 2019, and after completing her work duties, Jana entered her bedroom at the residence and took her medication comprising Zoloft (150 mg), Diazepam (10 mg), melatonin and Stilnox. Zoloft was prescribed for depression, Diazepam for sleep and melatonin and Stilnox to induce sleep. On Jana’s case, Alan was aware of the abuse she had suffered, that she took her medications every evening and of the side-effects of the medication, including drowsiness.

94    It was Jana’s habit to take this mix of medication every night prior to retiring to bed. Within a period of between 30 and 60 minutes, the medication would cause her to feel extremely drowsy, dizzy and to have decreased mobility.

95    Jana first met Alan in 2015, at an early point in his relationship with Mariana. On initial assessment, Jana found Alan to be polite and that he and Mariana enjoyed a happy relationship. Alan had three children from a previous marriage. After a while Jana and Alan became close, which she described as: “a father figure in my life”.

96    Jana commenced working as a model when she was 16 years of age. She continued that work, albeit on a part-time basis, until January 2019. In 2017, she commenced undertaking some part-time work at Flaxton Gardens. Initially, her duties focused upon assisting Mariana with administrative tasks and management of the social media platforms of the business. Sam also worked in the business.

97    From time to time, Jana would speak with Alan about “significant or difficult things that were going on in our life”. She recalls an early conversation where he disclosed that Mariana had informed him about Jana’s childhood sexual abuse, and he explained that he understood her pain because his step-father had abused him and his sisters. There were other conversations with Alan in which Jana disclosed that she was receiving psychiatric treatment and had been prescribed various medications. In 2018, Alan disclosed to Jana difficulties that he was experiencing in his relationship with Mariana and that he was stressed. In that conversation, Jana suggested that Alan might receive benefit from prescribed medication, in the way that it had “really helped” her.

98    Jana accepts that at times she would speak to Alan about “difficult things in my life” of which she gave one example: being the mother of a young child.

99    The Summer Showcase event of 12 January 2019 was held to promote the business of Flaxton Gardens to other business owners in the community. Jana began her work shift at approximately 10 am. At approximately lunchtime, she noticed that Alan had commenced consuming alcohol. The Summer Showcase event was scheduled to begin at 6 pm and concluded at 8 pm. During the event, Alan gave a speech at which time Jana noted that he was “slurring his words and his body demeanour indicated that he was intoxicated”. Commencing at approximately 7 pm, Jana consumed one glass of champagne and approximately two further glasses until 9 pm. The Summer Showcase event concluded at somewhere between 8 and 8:30 pm and by 9 pm, “most of the suppliers and staff had departed the venue”. At that point the only persons who remained were Alan, Ben, Sam, Mariana and Jana. At the time, Sam was residing in the residence. She left the venue shortly after 9 pm and returned to the residence. The others stayed at the venue and over a period of time consumed espresso martinis which were prepared by Ben. Jana consumed one or two glasses of that cocktail.

100    At some point, the remaining group members moved into the kitchen area of the venue, which was set up with a couch and some chairs. Music was played, people danced and some engaged in karaoke. Jana danced with Mariana. Alan and Ben remained seated engaged in conversation. Whilst in the kitchen area, Alan prepared several whiskey and Coke drinks for Jana. She does not recall how many she consumed; although she does recall that whilst making the drinks Alan was “continuing to slur his words”.

101    Unsurprisingly, during or after having consumed the whiskey and Coke drinks, Jana felt intoxicated. In particular, when dancing with Mariana she was nearly “falling over when twirling around”. Whilst in the winery area, Alan removed his trousers and was wearing only his boxer shorts on the lower part of his body. That was something that he had done in the past; at least between family members.

102    As the evening progressed, Mariana took steps to wind up the socialising such as by advising: “this is the last song”. Jana walked back to the residence, believing that Mariana had already left or was close behind her. On arrival at the residence, she engaged in her nightly routine of consuming her medications. She took Zoloft (150mg), two 5mg tablets of Diazepam, one melatonin tablet and one Stilnox (low-dose) tablet. She went to the bedroom next door to hers where Sam was sleeping and she removed a pillow. She recalls Sam saying words to her to the effect of: “Jana, you need to go to bed you’re so drunk”. At that time the effect of the taking of her medications had not caused her to feel drowsy. As she had not noticed that Mariana had returned to the residence, she went to look for her. She returned to the venue. She checked the office area within. Her mother was not there. Alan and Ben were still in the kitchen area engaged in conversation. She enquired as to the whereabouts of her mother and was advised that she had departed with her.

103    At this time, Jana began to feel drowsy. She sat down on the couch. She drifted in and out of sleep. At one point she noticed Alan walking out of the room with Ben. Thereafter her memory is fragmented due to the effect of her medication. Her next recollection is that she was at the top of the stairs in the mezzanine area where she recalls having blown out candles to assist Alan in the procedures for locking up the venue. She sat down on the stairs. Her vision was blurred and she felt disoriented. Alan sat next to her.

104    He began to confide in her about the financial issues affecting the business and his marriage. Alan then said words to the effect: “I’m in love with you. I wish things turned out differently and I could be with you”; We’re perfect for each other” and “I want you to be my lover on the side”. Jana responded to the effect: “What! I don’t agree” and “Obviously you don’t mean that”. At this time Jana was slurring her words. Alan engaged in further conversation with her saying words to the effect: “I’ve been thinking about this for a long time”, to which she replied with words to the effect: “You should be going back to your wife”. Alan did not provide an audible response to that last statement, but instead kissed Jana on her lips and she recalls: “feeling his tongue heavily in my mouth”. She pulled away and said: “No”. Alan apologised, but then again kissed Jana on her lips.

105    Jana thought that the level of intoxication had caused Alan to do these things and that he would not repeat his behaviour. Jana had difficulty controlling her limbs as they felt “very heavy”. After the second kiss, Alan said words to the effect of: “I have loved you for a very long time and I have wanted this for years now”. Jana did not respond. She states that she “was entering shock and my mind and body began shutting down”. Alan continued the conversation saying words to the effect that he wanted Jana “on the side”. Jana responded with words to the effect: “What… If you’re wanting a relationship with me, this will make you end up like your stepfather”. Alan responded with words to the effect: “it’s not the same”.

106    Alan unlocked the door behind where they were sitting. Jana had never observed that this door had been opened. It was a door to the Bridal Suite. There was a bed inside the room. She noticed that the blackout curtains were closed. She felt “really tired” and “found it hard to move”.

107    Alan then guided her into the room and she recalls sitting on the bed. Alan then said words to the effect of “going further with this”, such as “I want to go further with this”. Jana responded to the effect: “I just want to go to sleep”. At that point she was struggling to process what was occurring and was concerned that she would be unable to remove herself from the situation. She noticed Alan lock the door. He then sat next to her on the bed and kissed her. She recalls telling him: “No”. On her assessment Alan “really looked like he was enjoying himself”. Once again, Jana said to Alan something to the effect of: “I don’t want this”. She was laying on her back on the bed. She was wearing a denim dress that had one zip down the front. Alan unzipped her dress and removed her underpants. She was not wearing a bra. When this occurred, Jana described her state as: “I remember feeling mortified and completely shocked. I felt frozen and paralysed with fear. I felt completely powerless. I remember thinking, this is not what I want. I felt completely powerless and disassociated.”

108    Alan removed Jana’s tampon. In doing so he said words to the effect of: “It’s no problem. It’s really nice and clean.” Alan then placed the tampon in a bin in the ensuite. When he returned, he performed oral sex on Jana. She felt his head near her vagina and at least one finger was inserted into her vagina. She told Alan, words to the effect of: “No, I don’t want that”. Alan responded with words to the effect of: “I just want to make you feel good”. At that point Jana considered that Alan was not listening to her.

109    Alan then moved on top of Jana. She was lying on her back. She could feel his erect penis. He then penetrated her vagina with his penis. She could feel his entire body weight on top of her. She did not know what she could do as she was: “Too weak and affected by the medication to push him off”. She no longer expressed her lack of consent, having concluded that, because Alan had not earlier listened to her, he would not whilst having intercourse. She reached the point where she just wanted the event “over”, and in her words: “I felt disassociated. I just laid there. I felt the trauma of the previous childhood abuse, and recall thinking: now this is happening again”.

110    After a short while, Alan concluded having intercourse, but she does not know whether he ejaculated. She does recall him saying words to the effect of: “Don’t worry about getting pregnant, I’ve had the snip”. She did not respond to Alan. When she could, she got up from the bed and walked to the toilet in the ensuite. She noticed that her tampon was in the bin. She decided that she needed to exit the Bridal Suite as fast as she could. When she returned to the Bridal Suite, she noticed that Alan “was kind of fluffing around” and he then said words to the effect of: “You sleep here. Your mum won’t question it” to which she replied with words to the effect of: “I would rather go to the room in the house”. She avoided further eye contact with Alan, tried to display no emotion, dressed herself and went downstairs. She ran back to the residence in the dark. She recalls that she was “shaking and I think I was crying”.

111    When she reached the residence she went to the bathroom. She did not switch any lights on. She used the light on her mobile phone. She dressed into her sleeping clothes and washed her face and mouth. Shortly thereafter, Alan entered the residence and enquired with words to the effect of: “Where are you?”. Jana attempted to hide behind the bathroom door. She was shaking and did not respond to Alan. After a little while, she emerged from the bathroom believing that Alan had gone to bed, but he noticed her and said: “Here you are”. She responded “Yep” and walked towards the bedroom in order to sleep. Alan enquired of her well-being with words to the effect of: “Are you all right” to which she responded “Yep”. Alan responded with words to the effect of: “I want to tuck you in”. Jana did not consider that to be appropriate and replied: “No”, went into the bedroom and closed the door behind her.

112    Jana did not get into bed. She knelt down between the twin beds in the room and cried in the dark. In her affidavit she described her thought process at that point as:

I tried to process and work out what had happened. It was too much for me to deal with. There were so many things running through my head, like “this is my mum’s husband and he believed there was nothing wrong with professing his love for me”.

I remember thinking “after all my progress in healing, how am I possibly supposed to do it all over again?”. I started thinking dark thoughts about killing myself because I did not want any part of it.

I also thought about how he has children, and I have a partner and a child and my life was happy.

I began having suicidal thoughts.

I knew I could not deal with the rest of the night alone, so I went next door into Sam’s room. I lied down next to her on her bed and began crying hysterically. I could not breathe and I could not say anything.

113    On entering Sam’s room, she woke her. Sam asked questions of her with words to the effect of: “What’s wrong?”. Jana could not respond fully and kept saying: “something bad happened”. On further questioning, Jana said: “Alan had sex with me”. To this Sam replied with words to the effect of: “What happened? How?” Jana responded with something like: “It just happened”. She was too upset to give a more detailed explanation. Eventually, she fell asleep next to her sister.

114    At approximately 11 am on 13 January 2019, Sam woke Jana from her sleep. She said to her words to the effect: “You’ve got to go to work. We will tell mum later.” They spoke briefly about telling Mariana later that day. Jana got dressed and walked over to the office. Alan was in the office. Upon entering, he said words to her to the effect of: “Morning Gorgeous”. This made Jana feel sick. She did not want to converse with Alan. She looked to find her mother, without success. She had another conversation with Sam about the need to tell Mariana what had happened. It was decided they would tell her that night, at a meeting at Jana’s home.

115    Jana worked for approximately two hours that day. She was too upset to keep working. She did not know at the time, but subsequently became aware, that Sam approached Mariana later that day and told her to come over to the house that evening and not to advise Alan where she was going or why. Before Jana met her mother, she began receiving text messages and a telephone call from Alan. She did not answer. One of the messages stated: “Can we talk?”. Jana did not respond.

116    The pre-arranged meeting occurred between Jana, Sam and Mariana. Jana said words to her mother to the effect of: “Alan had sex with me last night”. She did not use the word “rape”. She explained why in her affidavit as follows:

[B]ecause it was very confronting. For a long time after 12 January 2019, I did not use that word. I found it too upsetting to talk or think about having been raped. It was unimaginable that I had to say that word out loud. Instead, whenever I explained what happened, which was not often, I said that Alan had sex with me without my consent.

117    On disclosing this to Mariana, Jana’s evidence was: “My mother sat there and did not react. I told my mother that he had taken me to the Bridal Suite from the mezzanine. My mother then started asking me questions, implying that she did not believe me. She asked me how Alan kissed me and other questions about Alan’s penis. I think she was trying to catch me out lying. My mother said words to the effect of: “He would never do that”. I replied to my mother with words to the effect of: “I would never consent”. I further stated words to the effect of: “If you need proof, there is a tampon in the ensuite bin”. I told my mother that Alan is not a good man, and that he needs to stop drinking.

118    There was further discussion between Jana and Mariana which concluded with Mariana stating words to the effect of: “We will never speak of this again”; to which Jana replied with words to the effect of: “Okay, but only if you get yourself out of that situation”, meaning her relationship with Alan.

119    On or about 19 January 2019, Mariana requested Jana to attend the business to speak about what had happened. Jana complied. She had a further conversation with her mother, who told her that she had felt “really affected” by what had happened and that “Alan and I had “messed up”, and that we “need to sort your shit out”, referring to Alan and I”. Mariana then said words to the effect that Jana needed to “sort it out” with Alan and that he was waiting to discuss the matter with her.

120    Jana walked outside of the building and spoke to Alan. Her affidavit evidence as to what occurred was:

Alan said to me words to the effect of: “well… This is tough. Honestly, I was disappointed when you told your mum. We could have had something between us.”

I replied with words to the effect of: “she deserved to know. What did you tell her?”.

Alan replied stating words to the effect of: “obviously I had to play the I don’t remember card”.

I then told Alan that I would be working from home and that I was not coming back to work.

121    Jana intermittently attended Flaxton Gardens for the purpose of undertaking work until September 2019. Within that period her evidence was that she felt uncomfortable at the workplace, particularly because, on each day that she worked, Alan would greet her with: “Hello Gorgeous”.

122    On 30 August 2019, James asked Jana to marry him, and she accepted. Jana agreed to have the wedding ceremony at Flaxton Gardens at the insistence of Mariana, because she and Alan could not otherwise afford to contribute to the wedding. Jana did not want to have her wedding at Flaxton Gardens. Jana was annoyed that her mother would suggest it, but she was insistent and Jana “felt like I had to agree”. The date of 12 December 2019 for the wedding was determined.

123    By September 2019, Jana had decided that she could not continue working at Flaxton Gardens. She had another conversation with Mariana and told her how unhappy she was at the prospect of being wed at Flaxton Gardens and that Mariana “needed to leave” Alan and acknowledge what had occurred. Mariana responded that she did not want to leave Alan. Jana told Mariana that she was quitting her job, to which Mariana replied with words to the effect that she had to tell Alan in person. Jana then approached Alan, informed him that the workplace was too stressful for her and that she would no longer continue working in the business. She also told him, using words to the effect: “I am worried that I am leaving [another female employee] in a dangerous situation working in an office alone with you”, to which Alan responded with words to the effect of: “Of course you don’t trust me with her. As if I would be that stupid.”

124    The wedding occurred at Flaxton Gardens on 12 December 2019. Jana says that the event ran smoothly, and that she tried not to think about Alan and what had occurred in January 2019. She gave a wedding speech, acknowledging that she was tipsy, and accepts that she thanked Alan and Mariana because “it would have been strange not to, given they had hosted the wedding at the venue”.

125    On 3 June 2020, Jana made a complaint of rape to officers of the Queensland Police Service.

Alan’s evidence

126    The following is taken from Alan’s primary affidavit made on 6 December 2023. On his case, he and Jana developed a close personal relationship during her period of employment at Flaxton Gardens, which he described as “emotionally intimate, to the point of having an emotional affair”.

127    On many occasions, Jana and Alan drank alcohol together (to the point of being drunk), and it was common for each to talk about personal issues; including in their respective relationships. On some occasions they had talked about wanting to run away and escape from their responsibilities. On several occasions they had spoken about their relationship as not being one of father and daughter and, on at least one occasion, Jana had made comments to Alan to the effect that “she guessed I found her sexy”, to which he replied to the effect that “of course she was”.

128    There were occasions on which Alan would put Jana to bed when she had too much to drink. Once when he did so, Jana kissed him on the lips.

129    On 12 January 2019, the Summer Showcase event concluded at approximately 8.30 pm. Alan, Mariana, Sam and Jana worked until approximately 9 pm. When they finished working Alan, Ben, Mariana and Jana sat in the bar area of Flaxton Gardens. While seated each had one or more drinks. Ben made a batch of espresso martinis for the group. Alan and Ben each drank one espresso martini; Mariana drank one espresso martini and a glass of champagne and Jana drank “champagne and two cocktails”. Sam dropped in briefly but did not stay.

130    After a short while, the group moved into the winery area adjacent to the bar. Alan and Ben were seated and engaged in deep conversation. Mariana put on music and Jana sang karaoke and danced with Mariana. Alan observed Jana’s dancing becoming “more sexually suggestive”. Mariana asked Jana to stop and said words to the effect of: “You can’t dance like that”. Alan and Ben remained in deep conversation while the dancing and karaoke occurred.

131    At some point during the evening, Alan removed his trousers as he suffered from eczema and itchiness. He would sometimes do so among family and friends. He asked everyone whether they were okay with him doing this and they said that they were. He was wearing loose boxer shorts.

132    Mariana and Jana sat on a sofa in the area where Alan and Ben were sitting. Jana sat with her legs across Mariana’s lap, which was revealing as Jana was wearing an above-the-knee skirt. Mariana said words to the effect of: “Stop being like this” and slapped Jana on the leg. Jana responded to the effect of: “Don’t you know that will turn the boys on”. Mariana appeared to be annoyed by Jana’s response and said words to the effect that it was time for bed and told Jana to come with her. Mariana and Jana exited the winery area and Alan and Ben continued their conversation.

133    A short time after leaving the winery, Jana returned. Alan cannot recall how long she was she was away. Jana said that she wanted whiskey and Alan took her to the restaurant bar where they selected a bottle before returning to the winery with the whiskey. Jana, Ben and Alan sat together and resumed their conversion. Alan recalls Jana participating in the conversation and that she was awake and alert. Jana continued to drink, including some drinks that she poured herself and some poured by Alan.

134    Alan and Ben resumed their conversation about Ben’s relationship breakdown. Jana was sitting close to Ben and may have been sitting on his knees or over his legs. To an extent, Jana participated in the conversation. Alan did not notice that Jana was asleep or dozing at this point. To his observation, she was awake and alert. From time to time she went outside, he assumed to have a cigarette or to vape. She continued to consume alcohol.

135    At approximately 1.30am, Ben said that he was going home. Jana was not present at that time. Alan walked Ben to his car and returned to the venue. Jana joined him. Alan recalls that Jana said words to the effect that she wanted more whiskey and he had the impression that she was keen for further conversation. They continued drinking and talking. Their conversation eventually turned to their respective relationship difficulties; during which each said to the other words to the effect that they wished to “run-away”.

136    During their conversation, Jana was sitting on Alan’s lap while he massaged her shoulders. At some point Jana removed her shoes, turned around and put her legs on his knees and he massaged her feet. He noticed that she was “a bit ticklish around her toes”. To his observation Jana was “very comfortable and relaxed” and said words to the effect that she was “enjoying the massage a lot”.

137    Jana was wearing a denim dress that zipped up at the front. Alan does not recall whether it was zipped from the bottom up or the top down, but he does recall that Jana partially opened the zip to expose more of her legs. At that time, he felt “very comfortable, and as it appeared to me that Jana was clearly enjoying the massage, I slowly began to massage further up her legs.” In response, Jana asked Alan if he “was actually intending to create a sexual feeling” and that she “was feeling very excited by the massage”. He responded to her that: “I was okay with that if she was”, she said that she was and he continued to massage her feet and legs including her thighs. Jana then repositioned her legs and asked Alan if he “was wanting this to go any further”, to which he responded that he was comfortable in going further “if she was happy to” and they then discussed the consequences of “going further sexually”. He recalls that they then spoke about “being adults”, at which point he informed her that his relationship with Mariana “was looking pretty bad anyway”.

138    They both then “kissed and fondled one another for some time on the sofa in the winery”. Alan cannot recall how long they did so, but on his estimate it was around two hours. During that encounter Jana’s dress “was completely open” and he noticed that she was wearing G-string underwear without a bra. They continued kissing, and each made “several comments about how good it felt”. After doing so “for some time” they decided to go upstairs and into the Bridal Suite. Alan cannot recall who first suggested doing so.

139    They got up from the sofa and walked the stairs to the door to the Bridal Suite. Alan recalls tripping on the stairs whilst Jana was waiting for him at the top. They sat down at the top of the stairs and “kissed and fondled one another some more there”. At this point he recalls asking her “if she was sure she wanted to go into the apartment” to which she responded that she was. Thereupon, they entered the Bridal Suite.

140    Alan sat on the bed and removed his shirt. Jana stood in front of him and removed her dress and underwear. Alan noticed that she had a tampon in and said: “looks like you have a rat rail hanging out”. Jana responded: “oh fuck! It’s ok”. She then removed the tampon, showed it to him and said: “it’s clean”. Alan said words to the effect of: “are you comfortable with this?”. Jana responded: “yes”. He watched her go into the ensuite bathroom, sit on the toilet and put the tampon in the bin. While Jana was in the ensuite, Alan removed his boxer shorts and got into the bed.

141    Jana returned from the ensuite and got into bed with Alan. He asked her: “do you want this?”, to which she responded: “I need it”. They then had sex. Alan was on top and she guided his penis into her vagina with her hand. He stopped and asked her: “are you ok” to which she responded: “it’s good”. Alan cannot recall exactly how long the sexual intercourse lasted for, but it was not long as he became lightheaded. He said words to the effect that he was sorry but couldn’t finish, to which Jana responded that: “it was ok”. He then fell asleep and when he awoke Jana was gone.

142    Alan left the Bridal Suite, turned off the lights in the venue and closed all the doors. He estimates this took approximately five to ten minutes. He then walked to the residence. Upon arrival, he saw Jana and Sam standing in the doorway to Sam’s bedroom and asked them if everything was ok. They both responded that it was. Alan then entered the bedroom he shared with Mariana and accidentally woke her by turning on the light. He got into bed and went to sleep.

143    On the morning of 13 January 2019, Alan woke at approximately 7 am and began preparing for the second day of the Summer Showcase event. Jana came into the office late, although he cannot recall what time. He said words to her to the effect that: “if she needed to, she could go home” and left the office and went about his work. He did so because he thought Jana may need some space after the events of the previous night. That afternoon, Mariana told Alan that she had received a text message from Jana asking her to attend Jana’s house as she needed to talk. Mariana asked Alan if he knew what was going on and he told her that he did not. Mariana then left Flaxton Gardens.

144    Mariana returned to Flaxton Gardens sometime later and did not want to speak to Alan. She did not stay at the residence.

145    At 6.49 pm on 13 January 2019, Alan sent Jana a text message asking if he could call her. He had the intention of discussing the previous night. He believes that he attempted to call her at least twice, but does not recall if that was on 13 January 2019, or later. Jana did not respond to the text message.

146    Later in the evening of 13 January 2019, Mariana asked Alan what had happened the previous night. He responded to the effect that he: “Was having difficulty remembering but thought that Jana and I had crossed a line”.

147    On 14 January 2019, Mariana asked Alan further questions about what had happened with Jana the night before. He stated that he: “Felt like a line had been crossed” but could not remember much. During the conversation, Mariana suggested that Jana and Alan had had sex and he agreed that they had.

148    Alan did not see Jana until approximately one week later, around 19 or 20 January 2019. Jana did not work in the intervening period. He was sitting on the veranda of the residence and observed Jana arrive and enter the office, where he knew Mariana to be. A short time later Mariana and Jana walked over to Alan. Mariana was initially present, but left when requested to do so by Jana so that she and Alan could speak.

149    Alan and Jana spoke for approximately half an hour. Alan’s affidavit evidence as to the content of that conversation was that he said words to the effect that: “The events of 12 and 13 January 2019 were a mistake that we were both responsible for”; “That mistake should never have happened”; “I was sorry for my part in that mistake”; “I was very concerned as we had both made a bad choice” and; “I would be willing to talk with a counsellor with her if she thought it would help”. His affidavit evidence was that Jana responded to the effect that speaking to a counsellor together was not necessary and that she said: “I don’t have an issue with what we did” and she was “all good” and would work through it with her counsellor.

150    Alan then said words to the effect that he: “was ok to tell James”. That comment upset Jana and she stated that she did not want to tell James and he was never to find out. She said that she was afraid that, if James found out, he would take her son away from her. They hugged and Alan had the impression that the conversation ended in a civil manner.

151    Alan, Mariana and Jana continued to work at Flaxton Gardens. He recalls that after the events of 12 and 13 January 2019, Jana worked mostly from home. He removed his office from the commercial premises to the residence in an effort to “ease tensions”.

152    Alan recalls that Jana attended a number of events at which he was present throughout 2019. At each of those events they were cordial and sociable towards one another. In early August 2019, Jana stopped working for Flaxton Gardens.

153    On 12 December 2019, Jana and James were married at Flaxton Gardens. Alan recalls that during the wedding, Jana gave a speech in which she thanked him and Mariana for making the event possible and specifically thanked him for all his assistance and “being a good person”.

Jana’s response

154    It is apparent from the Comprehensive Reference Index, Part B of the Appeal Book, that Jana filed an affidavit of evidence in response to Alan’s version dated 13 February 2024, but it has not been included in Part C of the Appeal Book. However, I have the benefit of her reply pleading in which she accepted the general contention that Jana and Alan each enjoyed an emotionally intimate relationship prior to 12 January 2019, during which they would confide in each other as to difficulties they were experiencing in their relationship with their respective partners, which discussions included details as to their respective mental health. She denied however that they discussed any singular or mutual desire to “run away from life”.

155    Jana denied a series of contentions (pleaded as the Winery Pre-Sexual Conduct) as to what occurred on her return to the winery at approximately 12:45 am on the morning of 13 January 2019, save that she accepts that once Ben left the winery, she and Alan were alone. She accepts at some point he massaged her shoulders.

156    Specifically, Jana denied that Alan massaged her legs; that they engaged in intimate fondling or kissing “for some time”; that she rearranged her dress to expose her breasts and underwear or that she made comments to Alan to the effect that “the kissing and fondling felt good”.

157    Jana further denied each of Alan’s contentions that they agreed to ascend the stairs to the Bridal Suite, engaged in more pre-sexual conduct and then, upon entering the Bridal Suite, engaged in consensual sexual intercourse. Finally, Jana denied the balance of the contentions of Alan as to what occurred after the act of sexual intercourse.

158    When Jana commenced her evidence before the primary judge, she corrected/clarified some statements in her primary affidavit. Relevant for present purposes is the following evidence. Although she recalled there being a door at the top of the stairs to enter the Bridal Suite, with a key in it, she did not “really remember” Alan pulling the key out and placing it in the door. As to the placement of her tampon in the bin in the ensuite, she said that she remembered “thinking” that her tampon was in the bin but “not seeing it physically”. After the act of intercourse, when she called on her sister Sam, she could not say whether she woke Sam up or whether she was asleep at the time. As to who approached Mariana the following day, in order to initiate a discussion, she clarified her evidence that both she and Sam made the approach. As to what happened during the speech given on her wedding day, she said that when she thanked those present, it was addressed generally to everyone and not particularly to Mariana and Alan. With those alterations, she confirmed the accuracy of her affidavits.

The other witnesses and evidence before the primary judge

159    James and Sam made affidavits and Dr De Leacy, a psychiatrist, provided a report in Jana’s case. Ben made an affidavit for Alan. Mariana made an affidavit in which she expressed reluctance about her involvement, disclosed that she had received a subpoena from Alan’s lawyers and recorded that she was not acting on his behalf.

160    Each witness gave oral evidence before the primary judge. In addition, there was documentary evidence in the form of an agreed Court Book and a number of separately tendered exhibits. Each witness was cross-examined.

Reasons of the primary judge

161    His Honour commenced by setting out almost the entirety of Jana’s amended statement of claim and the substantial parts of Alan’s defence where he pleaded his positive case. His Honour then set out the civil standard of proof at s 140 of the Evidence Act 1995 (Cth), together with paragraphs [90]-[111] and [126]-[132] from the judgment of Lee J in Lehrmann v Network Ten Pty Ltd [2024] FCA 369, where his Honour was concerned with the burden and standard of proof in a civil proceeding involving claims of serious wrongdoing.

162    Next his Honour extracted a number of very long passages from the speech of Lord Brandon in Rhesa Shipping Co SA v Edmonds & Another : The Popi M [1985] 2 All ER 712 at 717-719, a case about proximate cause in a shipping collision, but said by his Honour to be presently relevant on the process of judicial reasoning when there is doubt as to who should be believed on critical questions of fact. To this reference his Honour then added the decision of Jackson J in ASIC v Wilson (No 3) [2023] FCA 1009; (2023) 171 ACSR 1 at [98]-[114] where his Honour addressed the civil burden and standard of proof, the drawing of inferences, circumstantial proof and how to assess the reliability of witness evidence.

163    The relevance of these citations was ultimately made clear by the primary judge when stating his conclusions at PJ [85]-[88]. His Honour doubted the “version” of events of Jana and Alan, stated that he was “unable to come to any concluded view” as to whether the conduct in the Bridal Suite was “unwelcome” and for that reason concluded that Jana failed to discharge her onus of proof.

164    Whether the primary judge correctly reasoned to that conclusion is the focus of the appeal grounds.

165    Returning to the disclosed pathway of his Honour’s reasons, he next set out s 28A of the SDA and framed as the central issue whether Alan had made an unwelcome sexual advance or had engaged in unwelcome conduct of a sexual nature: PJ [13]. His Honour also recorded the agreement of counsel that Jana would fail in her claim if the Court was unable to make a finding one way or the other as to whether the conduct was unwelcome: PJ [13].

166    His Honour turned to a consideration of the evidence commencing at PJ [15]. With respect to his Honour, the reasons are haphazard and lack logical structure. At PJ [16]-[17], his Honour made an entirely peripheral observation (the intercourse did not constitute the crime of incest) and then recorded the obvious fact that was not an issue: that Jana was present at Flaxton Gardens on 12 January 2019 for purposes related to the Summer Showcase event and when it had concluded, the remaining participants retired to the winery area and consumed alcohol.

167    At PJ [18]-[22], his Honour addressed the evidence of Ben, whom he described as “an important witness”. At PJ [19], his Honour reproduced verbatim almost the entirety of Ben’s affidavit made on 8 December 2023. Ben is a professional photographer and attended the Summer Showcase event as an invited guest. When the event had concluded, at approximately 8:30 pm, he remained and engaged in conversation with Alan and Jana in the bar area. He made some espresso martini cocktails. He consumed two of them until he departed at somewhere between 1 and 1:30 am on 13 January 2019. To his observation, Jana was drinking, but he made no observation as to how many drinks she consumed. He did observe that she was: “a bit tipsy and was in a relaxed, bubbly mood. I would describe her mood and behaviour as someone who had three or four drinks”. Alan was also drinking, he did not observe how many, but he also described his state as: “someone who had three or four drinks”. Whilst he was conversing with Alan he did not notice that he had difficulty in doing so or in understanding what was discussed.

168    At some point the group moved from the bar area into the main function area and they sat either on a sofa or on a range of chairs that had been set up. Ben engaged in conversation with Alan about difficulties that he (Ben) was having in his relationship with his partner. During this discussion he noticed that Mariana was “up and down” between the sofa area and an adjacent space where she was singing and dancing. He noticed, at an unspecified time, that Mariana left the function area and did not return. He also made observations of Jana whilst she was in the function area. He noticed that she was “moving between the inside and outside of the venue”.

169    Following the departure of Mariana, Jana continued to move between the sofa area and the outside of the venue. His evidence was then:

[S]he 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. 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 Allen’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.

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.

170    Ben continued to engage in conversation with Alan. To his observation Alan did not seem to be affected by alcohol: “to an extent that I would be concerned about his ability to function or make decisions”. He made similar observations of Jana; concluding that: “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”.

171    Jana did not much participate in the conversation, but when she did to Ben’s observation: “she seemed to be conversing normally”. When she walked between the sofa area and the outside of the venue she “seemed to be walking normally”. He did not notice her dozing or sleeping.

172    Ben further expressed the view that “in lay terms, neither Alan nor Jana seemed “drunk drunk to me at any point” before he departed.

173    At PJ [20], his Honour found that the evidence of Ben was “largely consistent with” a police statement that he made on 25 July 2020, save that his affidavit in the proceeding did not mention his belief that by the end of the night, Jana and Alan “were heavily intoxicated, and that they were slurring their words, or that [Jana] was not walking properly”. That difference was pursued in cross-examination and his Honour set out the relevant extract in the balance of his reasons from PJ [20]. Ben could not offer any satisfactory explanation as to why that evidence was not included in his affidavit, concluding with the answer: “I don’t know”. Despite this, his Honour at PJ [21] stated that he accepted the evidence of Ben “in all respects”, placing emphasis on his evidence about Jana behaving “in such a sexualised way while sitting on [Alan’s] lap that he was made to feel uncomfortable”. At PJ [22], the primary judge found it “significant” that Ben had “deposed that it seemed to him that there was a sexual element to the interaction between [Jana] and [Alan], and that none of the physical interaction between the two was either unwanted, not appreciated, or not accepted”.

174    As I explain, a difficulty with his Honour’s findings about the evidence of Ben is that he failed to bring to account and grapple with his inconsistent evidence about Jana’s state of intoxication, which is the only topic on which he was cross-examined.

175    The primary judge next dealt with the evidence of Mariana from PJ [23], whom he described as “an important witness”. His Honour set out the entirety of her affidavit evidence as to her relevant observations by extracting 21 paragraphs from it. Mariana commenced her affidavit by stating that she was not well and had received advice that participating in the proceeding would likely be detrimental to her physical and mental well-being to the extent that “it may affect my ability to recollect events and or witness” (sic). She also stated that she was not “participating out of free will or by my own choice”, was attending in obedience to a subpoena, was concerned that by giving evidence it may destroy any chance of reconciling her relationship with her daughter, that the events in question have caused her deep trauma and hurt and that she was not giving evidence on behalf of Alan.

176    Subject to those matters, her affidavit evidence was as follows. Following the conclusion of the Summer Showcase event, she, Jana and Alan sat in the bar area with Ben. To her observation Jana had consumed “a few glasses” of champagne during the afternoon and may have had at least one espresso martini. She was in a lively and sociable “party” mood. Alan had been drinking earlier in the afternoon and seemed “to be a bit tipsy, but not drunk”. The party moved into the winery area, where she observed Alan and Jana drinking whiskey. Alan and Ben sat on the sofa and were engaged in conversation. Mariana put on some music and danced with her daughter.

177    Mariana noticed that her daughter’s dancing “became more wild and made me feel uncomfortable”. She left the dance floor and returned to the sofa area and then noticed that Alan had removed his trousers. When she was seated on the sofa, Jana approached her and sat down next to her. While seated next to her, Jana put her legs over her lap and played with her hair. This made Mariana feel uncomfortable and she requested Jana to cease. Mariana then slapped Jana on her leg in an effort to stop her behaving as she had, to which Jana responded: “Mum, don’t do this – it turns men on when you do this”. At this point Mariana felt uncomfortable and decided to leave the venue and go to bed. She did so between 12:30 am and 1 am on 13 January 2019.

178    Jana initially protested but eventually agreed that she would also retire to bed and each got up and headed towards the residence. To Mariana’s observation Jana then “seemed very tipsy but could walk by herself”. On their journey towards the residence, Mariana detoured to use the bathroom in the office area and to attend to a printing task. Jana did not follow her. When she exited the office, Jana was nowhere to be seen. She turned back to the winery area to look for her, without success. Alan and Ben were still engaged in conversation. Mariana then returned to the residence and noticed that the door to Jana’s bedroom was closed. This caused her to assume that Jana had gone to bed. Mariana then went to her bedroom and fell asleep.

179    The next event she recalls is that at approximately 4 am Alan came into the bedroom, woke her up and to her observation he was “quite drunk”. He undressed and got into bed. She went back to sleep. This is the extent to which the primary judge extracted passages from the affidavit of Mariana, at least in this section of the judgment, although the substance of other evidence was mentioned by his Honour when considering the credit of Alan at PJ [51(a)].

180    It is important to note that Mariana’s affidavit evidence went further which the primary judge did not mention. On the evening of 13 January 2019, Jana telephoned her and requested that she pack an overnight bag and go to Jana’s house because: “She wanted to talk to me about something serious”. Mariana did as requested. When she arrived at Jana’s house, Sam was also present. She noted that each was visibly upset. Her evidence continued:

Jana said words to me to the effect that “something happened”. My first thought was that something had happened between Jana and Ben, but then Jana said that she and Alan “slept together and had sex”.

I asked Jana a few times she was sure it was Alan, and not Ben. I asked that because, having seen Jana’s behaviour and mood the night before, my first thought was that she had gone to bed with Ben. Jana said that she was sure it was Alan. She described shortly that they went to the apartment by the internal stairs and described what Alan looked like naked.

I was shocked by what Jana said. I asked her what she wanted me to do and whether she wanted me to leave Alan. She responded to the effect “nothing, and I don’t want you to tell anyone. We will sort it out (meaning Alan & Jana)”. Jana said words to the effect that nobody can ever know, and especially that her partner, James, could never know.

At no point during that conversation did Jana say anything to the effect that Alan had raped her, or that the sex between her and Alan had been non-consensual.

181    Mariana did not stay at Jana’s residence that evening. She went back to the venue and entered the Bridal Suite. She looked in the rubbish bin in the ensuite and noticed a clean tampon. She took it out, wrapped it up and put it in a different rubbish bin.

182    Later that evening she received a text message from Alan enquiring as to her whereabouts. She told him that she needed to speak with him. Alan came to the residence. Her evidence continued:

I said words to him to the effect: “Is there something you want to tell me?”. He responded to the effect that he could not remember exactly, as he was still drunk or hung over, but that something had happened between him and Jana. I cannot recall the exact words he used, but it was something like “I think I crossed a line”.

183    Mariana gave evidence about her daughter’s wedding plans. To her recollection in the middle of 2019, Jana approached her at Flaxton Gardens, told her that she and James were to be married on 12 December 2019 and that they wanted to have the wedding at Flaxton Gardens. Mariana agreed. During the wedding speeches she recollects that Jana thanked Alan with words to the effect: “Thank you for all your assistance and for being a good person”.

184    Jana ceased working at Flaxton Gardens in August 2019. On or about 5 January 2020, a social function was held at Flaxton Gardens which Jana attended. Jana explained her attendance as an opportunity to say goodbye to other staff members. On 10 January 2020, they conversed by telephone. As to what was said, Mariana deposed:

During that conversation, Jana said words to me to the effect that Alan had raped her. This was the first time Jana had said anything to me to the effect that Alan had raped her, or that the sex between them was not consensual.

185    At PJ [68], the primary judge set out the more detailed evidence as to this conversation given by Mariana in her police statement, together with relevant extracts from her cross-examination. He did so as part of his assessment of the credit of Jana. That is a matter that I return to in detail in these reasons.

186    The primary judge at PJ [29]-[34] focused on evidence as to the movements of Jana from the time when she first left the winery area with her mother to her mother’s later assumption, that because the door to her daughter’s bedroom at the residence was closed, she must have been asleep inside. The evidence focused on questions that his Honour put to Mariana about the movements of each. His Honour was concerned about timing the pathway of travel in minutes. It would seem that his Honour was concerned to understand whether it was true that Jana, upon returning to the residence, had looked for her mother without success. His Honour obtained evidence from Mariana, that by reason of her diversion into the office on the journey to the residence, Jana must have been three or four minutes ahead of Mariana. When questioned as to whether, if Jana had checked to see if her mother was in the residence she would have noticed her, Mariana agreed. This was put by his Honour on the assumption that Jana had remained in the residence for 10 minutes before returning to the winery and had during that period checked to see if Mariana was in her bedroom. This evidence caused his Honour to conclude at PJ [33] that Jana had given false evidence that she left the residence and returned to the winery in order to locate her mother. The difficulty with that speculative reasoning is the large assumption that Jana spent 10 minutes in the residence coupled with imprecise evidence as to the time spent by Mariana in the office and the walk time to the residence. His Honour was after all concerned with events that occurred some five years and four months earlier where the participants were alcohol affected.

187    The primary judge from PJ [35] next dealt with whether there were candles on the staircase leading to the Bridal Suite. Jana’s evidence was that she recalled that she ascended the stairs to extinguish candles, and having done so, Alan sat next to her. His Honour rejected her evidence: photographs taken on 12 January 2019 did not show any candles on the stairs (PJ [38]), Mariana gave evidence in the District Court trial that no candles had been placed there since 2017 (PJ [39]), Alan gave evidence to similar effect (PJ [40]) and it was improbable that if Jana “was extremely affected by medication/intoxication, or a combination of both”, that she climbed two sets of stairs for any purpose other than “to pursue something private with [Alan] associated with the Bridal Suite” (PJ [41]).

188    The primary judge then undertook an assessment of the credibility of Jana from PJ [46]. The analysis is significantly challenged in her appeal grounds and submissions, which I later address. For the present, a high level summary is sufficient. His Honour found Jana to be an unsatisfactory witness, building upon “aspects” of her evidence that he had earlier concluded were “implausible and unsatisfactory”: PJ [46]. At PJ [47], his Honour concluded that Jana’s memory of the events which led to her entering the Bridal Suite was poor, relying on:

(a)    His rejection of the candles evidence;

(b)    Her denial that she sat on laps of Alan and Ben;

(c)    His finding that her evidence as to what she said to Alan and Ben was “vague and unconvincing”, for which his Honour relied on a substantial extract from the cross-examination;

(d)     His finding that she gave “vague and confusing” evidence as to what medication she took and the dosages;

(e)    His finding that she falsely denied arguing with Mariana about leaving the winery and retiring to bed, combined with inconsistent evidence about that in her police statement dated 3 June 2020;

(f)    His finding that she gave inconsistent evidence about the conversations between her and Alan at the top of the stairs, for which his Honour reproduced a short extract from the cross-examination;

(g)    His finding that in her evidence she “failed to make reasonable concessions”, which his Honour justified by a single reference: in her first affidavit she deposed that she only took Stilnox when she considered that she needed it, but in cross-examination was “adamant that she took that drug every night”;

(h)    Whether Jana informed her mother on the morning of 13 January that she had non-consensual sex or, according to the evidence of Mariana, that non-consent was not mentioned. His Honour preferred the evidence of Mariana;

(i)    His finding that the amendments that Jana made to her first affidavit when she commenced her evidence-in-chief were “significant” and made for the purpose of achieving consistency with her earlier statements in the criminal proceeding;

(j)    Implausibility in Jana’s evidence as to whether she had discussed intimacy issues with Alan before 12 January;

(k)    That she first consulted a psychiatrist Dr Martin in 2013 and was then diagnosed as suffering from PTSD, anxiety and depressed mood symptoms. Dr Martin was not called as a witness and his Honour concluded that there was no good reason as to why, which led to drawing the adverse inference: “that the evidence which could have been adduced through Dr Martin would not have assisted her case, either on the question of liability, or in respect of compensation/damages issues”.

189    His Honour next addressed the credibility of Alan. The reasons commence at PJ [48]-[49]:

[Alan] was visibly unsettled and anxious when giving his evidence at trial. He was a person under extreme stress considering the possible consequences of [Jana’s] case being made out against him – namely that he had had non-consensual sexual intercourse with [Jana], and that he had therefore raped her. He was already in the position of one who had incurred the moral wrath of the community at large by his having had sexual intercourse with the daughter of his then wife.

[Alan] was also a person whose responses to uncomplicated questions put to him were sometimes clumsy, verbose and initially unresponsive. It was not surprising, then, that under the skilful cross-examination of Senior Counsel, [Alan’s] evidence was in many respects unsatisfactory.

190    His Honour then provided examples by extracting large portions of Alan’s cross-examination at PJ [50] and [51]. Within PJ [51] his Honour found that Alan was “at times evasive”, “on occasion gave contrary evidence”, admitted that he was dishonest when speaking about the incident with Mariana and gave “conflicting evidence about him being awake and alert” on the one hand and “of how both he and [Jana] were affected by alcohol on the other”.

191    From PJ [52], the primary judge turned to his analysis of what occurred between Jana and Alan in the Bridal Suite. Perplexingly, his Honour did not analyse the competing evidence of Jana and Alan. Rather, his Honour proceeded by a series of stepped value judgements commencing at PJ [52] with this:

When two intoxicated people first enter a bedroom after having shortly beforehand engaged in sexualised conduct toward each other, this Court holds there are no hard and fast rules as to what will necessarily next transpire between them behind closed doors. A Court ought not to invoke outdated historical or moral preconceptions for the purpose of making positive findings about what most probably next occurred. That is particularly so where the consequences of making a finding of sexual misconduct are grave.

192    From that premise, his Honour reasoned at PJ [53] that he was not assisted by “academic treatises concerning what was typical or atypical behaviour of a sexual assault victim” in the task of “determining whether the truth lies in accepting [Jana’s] version of events; whether it lies in accepting [Alan’s] version of events; or whether the Court has been left in doubt as to which version of events ought to be accepted”. Just what academic material his Honour had in mind was not disclosed.

193    At PJ [54] his Honour generalised that a court could not “be persuaded” by the evidence of one unsatisfactory witness in preference to the evidence of “another unsatisfactory witness” if there was no “compelling reason” to accept either version as more probable. His Honour’s explanation of what he had in mind references CCTV, documentary evidence or the evidence of eyewitnesses. A perplexing aspect of that reasoning is the unlikelihood that CCTV would be installed in a bridal suite at a wedding venue or that those inside would document their encounters. In any event, at PJ [55], his Honour determined that the case turned on drawing inferences, rather than making findings based on the direct evidence of Jana and Alan, in part reasoning that:

Alternatively, factual evidence giving rise to competing inferences as to what might have happened behind closed doors is only compelling if one inference is more logical, rational and probable than the other. 

194    For that proposition his Honour referred to Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470 at 480-481, where Williams, Webb and Taylor JJ were concerned with drawing inferences where direct proof of a fact is not available.

195    At PJ [56], his Honour, in conclusionary terms, said:

The Court finds that it is in doubt as to what happened in the Bridal Suite between [Jana] and [Alan] on the question of whether their sexual intercourse was consensual or not. [Jana’s] evidence as to what happened in the room was unpersuasive, as was [Alan’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.

196    At PJ [57], his Honour characterised the evidence of Ben as “significant” as to the interactions between Jana and Alan whilst they were on the sofa in the winery, attributing to Ben that they “were both highly sexualised and consensual”. In turn this led his Honour to reason that:

[Alan’s] evidence about the sexualised conduct between him and [Jana] having continued between them whilst they were on the sofa after [Ben] left was contextually plausible based upon [Ben’s] evidence.

197    At PJ [58], his Honour concluded that there was “no reasonable explanation” given by Jana as to how she came to be at the top of the stairs. Her explanation about ascending the stairs to extinguish candles “was a fabrication intended to justify her having gone first to the top of the stairs”. From that finding his Honour concluded that:

[I]t was the joint intention of both [Jana] and [Alan] to go into the Bridal Suite with amorous intent.

198    At PJ [59], his Honour expressed “real doubt” about Jana’s evidence that Alan had removed her tampon, because:

None of the evidence about the placement of the tampon into a bin after its removal assisted the Court in determining whether it was [Alan] or [Jana] who removed the tampon. The respective cross-examinations of each of [Jana] and [Alan]on point was not elucidating.

199    His Honour then turned to the medical evidence from Dr De Leacy, commencing at PJ [60]. Dr De Leacy appeared as an independent expert witness for Jana, and in that capacity authored a report, at the request of Jana’s solicitors, dated 12 April 2023. The purpose of his evidence was to set out Jana’s history of psychiatric illness and symptomology, whether she was suffering from a recognised psychiatric illness and the effect of any such illness upon her and her capacity to engage in full-time employment. In broad summary, Dr De Leacy concluded that Jana was suffering from complex PTSD, originating in her childhood in consequence of sexual abuse, aggravated by her sexual intercourse with Alan. Her prognosis was guarded; the condition described as: “Quite difficult to treat and will be long lasting. There will be significant impairment for a considerable period of time, both in terms of work capabilities and enjoyment of day-to-day activities.”

200    The primary judge did not conduct an analysis of the content of Dr De Leacy’s evidence. Rather, he focused upon answers given in his examination-in-chief, for which he extracted a portion, as relevant to whether the consumption of “a substantial amount of alcohol” over a period of four hours combined with the taking of medication may have affected Jana’s memory “of a stressful or traumatic event”. The extract at PJ [60] is:

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.

201    His Honour then found at PJ [61]:

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 [Jana], then [Jana’s] memory of all claimed events would have been indelible or approaching indelible. To the contrary, [Jana’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 [Jana], has persuaded the Court that whatever transpired in the Bridal Suite was neither stressful nor traumatic to her. It was not unwelcome.

202    The next topic addressed by his Honour from PJ [62] was the wedding between Jana and James on 12 December 2019 at Flaxton Gardens. His Honour commenced by noting that Mariana withdrew her affidavit evidence that Jana had thanked Alan during the formal speeches, when video evidence was presented to her and which confirmed that Jana had said no such thing. However, from PJ [63], his Honour reasoned that: “Mariana nonetheless was adamant that [Jana] had said these things about [Alan]” and for that proposition set out an extract from the cross-examination of Mariana, which was to the effect that having conceded that Jana did not thank Alan during the formal speeches, Mariana maintained: “If it’s not in the speech, she definitely did say that. I stand by that.”

203    At PJ [64], the primary judge reasoned that Mariana was an independent witness, was not motivated to give false evidence and was credible. From this finding, his Honour stepped to a general implausibility conclusion at PJ [65]:

Further, the Court finds as implausible, and bizarre, the proposition that [Jana] would have agreed to have held her own wedding reception at Flaxton Gardens if she had in fact been raped by [Alan] at that very venue. [Alan] was, at the time of [Jana’s] wedding, central to the business operations of Flaxton, and assisted [Jana] in planning for the reception.

204    Next from PJ [66], the primary judge dealt with when Jana first made a rape allegation. His Honour preferred the evidence of Mariana: that on 13 January 2019 Jana said only that she and Alan had sex. She did not say it was without consent and did not use the word rape. According to Mariana it was not until sometime in early January 2020, that Jana informed her during a telephone conversation that she had been raped by Alan. The reaction to hearing that news was shock. The conversation became heated and Jana was distraught. Despite setting out a significant portion of the transcript of the cross-examination of Mariana on this issue, during which she confirmed her evidence, the primary judge did not reveal why, in his reasoning process, the delayed complaint of rape was significant despite describing the lapse of time as “important for the purpose of assessing” Jana’s evidence: PJ [66]. It should be recalled that Jana in her primary affidavit stated that when she first revealed to her mother on 13 January 2019 what had occurred, she said that the intercourse was without her consent but did not use the word rape. She further explained in her evidence-in-chief, that she refrained from using the word rape for some time after the event because she felt a sense of shame and: “I just wanted to try and rephrase it in any way I can that would still have the same meaning”.

205    The primary judge dealt with the evidence of James at PJ [71]-[73]. He noted James’ evidence that he first became aware of the allegation of rape when Jana made her police complaint in June 2020 and that he had told Alan that Jana took medication to assist with sleep. Apart from those two matters, his Honour concluded that the evidence of James was “otherwise of little weight” and that he was not “central to any of the events of 12 or 13 January 2019”.

206    Finally, his Honour addressed the evidence of Sam at PJ [74]-[84]. Sam was an important witness. She made an affidavit on 11 October 2023. She gave evidence as to what occurred when Jana returned from the Bridal Suite to the residence at approximately 4:30 am on 13 January. Her evidence as to that was:

Some hours later, at approximately 4:30 am, Jana again came into my room, but lay on the bed next to me. This time she was shaking and crying. I asked Jana what was wrong, and she said words to the effect of, “something has happened”. I asked her what had happened, and she told me she did not want to tell me. I tried to calm her down but she was hysterical. Eventually, she said the words: “Alan had sex with me”. I remember feeling like my whole body felt disgusted at him.

Jana told me that Alan had taken her upstairs from the Winery, to the Bridal Suite. She told me that she had said no, and told him to stop, but that she eventually gave in because she had no idea what was happening.

Jana told me she had said to Alan that she did not want him to be like his (sic) step-dad, who I understand molested Alan’s sister. Jana kept saying that Alan told her he was in love with her and kept kissing her.

Jana told me words to the effect that she was going to kill herself because she could not deal with that type of pain again, and I understood her to be referring to the sexual abuse she experienced as a child.

Jana told me that she felt she could not tell her partner, James, and she did not want to tell our mother because it would hurt her.

When Jana told me, I was shocked and then became angry at Alan. I was angry that he had done that to Jana and to my mother. I immediately felt like I could never let Jana be alone at Flaxton Gardens again.

Jana eventually fell asleep.

I could not go back to sleep after what Jana had told me. Instead of sleeping, I drafted a diary note in the form of a post to a private page on the blogging website “Tumblr”.

Annexed hereto and marked SK-01 is a true and correct copy of that draft Tumblr post.

207    The primary judge did not address the detail of this evidence. Rather, he reasoned at PJ [76]-[81]:

At about 4.30 am, Salome said that [Jana] again entered her room and lay on the bed next to her. She said that [Jana] 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 [Jana]what was wrong, [Jana] said words to the effect of “... Something has happened.” At [38] of her first affidavit, Salome recorded that [Jana] said “Alan had sex with me.”

At [47] – [48] of her first affidavit, Salome deposed that after [Jana] 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 [Jana] 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 [Jana] at the time, but rather was an attempt to record what she said [Jana] 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 [Jana]. Even if they were said, the Court is not prepared to accept that what [Jana] 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 [Alan’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 [Jana] had said to her words to the effect that the sexual intercourse between her and [Alan] was non-consensual.

208    At PJ [82] his Honour turned to the evidence of Sam that she recalled there being candles at the top of the stairs when she worked at Flaxton Gardens between 2017 and 2019. Although she was not cross-examined on that evidence, his Honour rejected it in favour of evidence to the contrary that had been given by Mariana and Alan. His Honour then stated his conclusions about Sam’s evidence at PJ [83]-[84]:

Salome’s evidence about what she said [Jana] said to her at about 4.30 am on the morning of 13 January was not probative of anything that [Jana] said had occurred in the Bridal Suite earlier that morning.

No expert evidence was called on behalf of [Jana] to comment upon what was recorded in SK-01. The Court finds that the evidence of Salome was of little weight.

209    His Honour’s reference to expert evidence in that conclusion requires an explanation that is not revealed in the reasons. In cross-examination, it was put to Sam that her note was not contemporaneous but created after the relevant events and had been edited by her more than once. She denied doing so. That was explored in re-examination. She produced for the Court her mobile telephone and on it she opened the Tumblr App. She explained that within the App there was a record of the post that she made at 5:50 am on 13 January. For that purpose, she handed her mobile telephone to his Honour and to counsel for Alan. A type of in-court demonstration was then engaged in, despite the objections of counsel for Alan. During one of the objections, his Honour invited counsel for Alan to call expert evidence to contradict what Sam had said. Counsel responded that he would take “that one on notice”.

210    What Sam demonstrated in her evidence is that the Tumblr App records the time of making the post, by pressing a particular button, as 5:50 am on 13 January. An edit was then made to the Tumblr post by adding the words “this was typed in for the purpose of the Court”. By saving the edit and re-accessing post, it was demonstrated that the timestamp had not changed and still reflected 5:50 am on 13 January. Sam confirmed that her understanding of editing a Tumblr post was that the timestamp would be updated to reflect the time of the edit rather than the original post, and further denied that she had altered the post at a later date. Thereupon, the case for Jana was closed.

211    The primary judge then stated his conclusions at PJ [85]-[89]. In part, his Honour said:

The Court has not been persuaded that it should make findings consonant with either of the two versions respectively advanced by [Jana] and [Alan].

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 [Jana] and [Alan] entered the Bridal Suite, [Jana] did not find any of [Alan’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 [Jana] has failed to discharge the onus of proof which she bore.

212    Accordingly, he dismissed the originating application.

The Appeal

213    The crux of Jana’s complaint is that the primary judge failed to bring to account material evidence before reaching his ultimate conclusion that Jana was not a credible witness (PJ [46]) which then led to the ultimate finding that his Honour was unpersuaded that he could make findings consistent with her evidence: PJ [85]. Jana’s written submissions identify as the central issue whether the credit findings of the primary judge were glaringly improbable, contrary to compelling inferences, incontrovertibly established facts or uncontested testimony. However, as the oral submissions were developed, the real point of complaint is that the primary judge simply failed to undertake an assessment of all of the evidence, misunderstood material evidence, overlooked that Jana in certain respects had given uncontradicted evidence and, most importantly, failed to appreciate the significance of the evidence of Sam that Jana made a complaint of non-consensual sex in a hysterical state a short time after her encounter with Alan in the Bridal Suite.

214    Thus, on Jana’s case the demeanour findings of the primary judge are infected by anterior error.

215    In contrast, the central argument for Alan is that the credit findings cannot be reviewed on Jana’s appeal unless the glaringly improbable or contradiction by incontrovertible facts threshold is met: Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55]. In each challenged respect, on analysis, the findings of the primary judge were open.

216    For reasons to be explained in detail below, the central conclusions of the primary judge cannot be sustained, and it follows that the dismissal of the proceeding is the result of error. The appeal must be allowed.

217    The amended appeal grounds contend that the primary judge committed multiple errors. They provide:

(1)    The primary judge erred by failing to find that the following conduct of the First Respondent on 12 - 13 9 January 2019 occurred, was unwelcome, and constituted contraventions of s.28B(6) of the SDA:

(a)    stating to the Appellant, words to the following effect:

(i)    “I’m in love with you”;

(ii)    “I wish things turned out differently and I could be with you”;

(iii)    “We’re perfect for each other”;

(iv)    That he wanted the Applicant to be his “lover on the side”;

(v)    “I have loved you for a very long time and I have wanted this for years now”; and

(vi)    That he wanted the Applicant “on the side”.

(b)    kissing the Appellant on the mouth without her consent;

(c)    leading the Appellant to a room known as the Bridal Suite, sitting the Appellant down on the edge of a bed, and stating words to the effect of: “I want to go further with this” before closing and locking the door to the Bridal Suite and returning to sit next to the Appellant (Bridal Suite Conduct);

(d)    after engaging in the Bridal Suite Conduct, kissing the Appellant on the mouth without her consent;

(e)    removing the Appellant’s clothing including her underwear without her consent;

(f)    removing a tampon from the Appellant’s vagina without her consent;

(g)    engaging in non-consensual oral sex and digitally penetrating the Appellant’s vagina with one of his fingers; and

(h)    engaging in non-consensual sexual intercourse with the Appellant;

(i)    stated to the Appellant, words to the effect “I just want to tuck you in”;

(j)    stated to the Appellant, words to the effect “morning gorgeous”;

(k)    stated to the Appellant, words to the effect “honestly I was disappointed when you told your mum. We could have had something between us.“

(2)    In reaching the ultimate conclusion that the Appellant was not a credible witness at J[46] and J[85] and had not discharged her onus at J[86] and failing to find the matters set out in Appeal Ground 1, the primary judge erred:

(a)    by finding that the Appellant was not extremely affected by medication/intoxication at J[37], J[41], and J[42], and by expressly finding at J[44]that the Appellant was “most likely a willing participant in her entry into the Bridal Suite with” the First Respondent, in circumstances where:

(i)    there was no challenge to the Appellant’s evidence that she had taken:

1.    Zoloft (150mg);

2.    Diazapam (10mg);

3.    Melatonia; and

4.    Stilnox;

(ii)    there was no challenge to the Appellant’s evidence that she had been drinking alcohol throughout the evening;

(iii)    the evidence of Ms Mariana Kruger and Mr Benjamin Connolly (who were found by the primary judge to be witnesses of truth (PJ at [64])), was to the effect that the Appellant became inebriated as the evening wore on and that by about 1:00 am or 1:30 am (which is when Ben last saw her), she was struggling to walk properly, struggling to stand up and was slurring her words (PJ at [20]);

(iv)    the evidence of Dr De Leacy, psychiatrist, was to the effect that:

1.    the combination of the Appellant’s medication with alcohol “would have a significant additive effect and a person in this situation would become extremely sedated, mentally, but physically compromised as well as because the blood pressure would have dropped… the person would feel weak, probably dizzy, as well as fatigued and possibly slightly confused”; but

2.    the Appellant could have “coped” with climbing the stairs by using the railing.

(b)    by finding:

(i)    at J[22] that none of the physical interaction between the Appellant and the First Respondent that was observed by Ben was unwanted, not appreciated, or not accepted;

(ii)    and at [57] that the conduct between the Appellant and the First Respondent was “highly sexualised and consensual”,

relying entirely on Ben’s opinion and his feelings of being made unconformable and there being no evidence from Ben that the alleged conduct was “highly sexualised”;

(c)    by finding at J[25] that the Appellant’s conduct towards he mother, Ms Mariana Kruger, was sexualised in nature relying entirely on Ms Mariana Kruger’s evidence that she was feeling uncomfortable;

(d)    by finding at J[29] to J[34] that the Appellant’s evidence as to her movements after she returned to the residence, and her stated reason for returning to the Winery, was false;

(e)    by finding at J[45], that nothing which occurred between the Appellant and the First Respondent up until the time they each entered the Bridal Suite was considered unwelcome;

(f)    by, in effect, finding that the matters set out at J[47](a) to J[47](k) were relevant to the question of whether the Appellant consented to sexual intercourse with the First Respondent in the Bridal Suite on 12-13 January 2019;

(g)    by drawing an adverse inference against the Appellant at J[47](m) for not calling her treating doctor to give expert evidence in the proceedings in circumstances where there was no proper basis to draw such an inference;

(h)    by finding at J[58] that the Appellant and the First Respondent had the joint intention to go into the Bridal Suite with an amorous intent;

(i)    by finding at J[61] that:

(i)    if the events of 12-13 January 2019 had been traumatic or stressful to the Appellant, then “her memory of all claimed events would have been indelible or approaching indelible” based on a selective and narrow assessment of the evidence relevant to that issue;

(ii)    that “whatever transpired in the Bridal Suite was neither stressful nor traumatic” to the Appellant and was not “unwelcome”;

(j)    by finding at [65] that it was “implausible” and “bizarre” that the Appellant “would have agreed to have held her wedding reception at Flaxton Gardens if she had in fact been raped by” the First Respondent “at that very venue”; and

(k)    by rejecting at J[79] and J[84], the evidence of Ms Salome Kruger that the Appellant informed Ms Salome Kruger on 13 January 2019 (almost immediately after the events in the Bridal Suite) that the First Respondent had sex with the Appellant and the Appellant had had told the First Respondent “no” and told him to “stop” but that she eventually gave in because she had no idea what was happening, when there was no proper basis for rejecting such evidence;

(3)    As a consequence of the errors identified in Appeal Ground 1 above, the primary judge further erred by failing to find that the Second Respondent was liable for the First Respondent’s conduct (as set out in Appeal Ground 1) by reason of s 106(1) of the SDA.

218    The grounds and the arguments may be conveniently grouped. The starting point is ground 2. It is unnecessary to interrogate each ground to explain why the conclusion of the primary judge is untenable.

219    It should also be understood that there is no Notice of Contention from the respondent and no submissions were put on Alan’s behalf in the course of the appeal, to the effect that the primary judge erred in finding that he was not a credible witness: PJ [10], [48]-[51], [53] and [54].

The recent complaint evidence: ground 2(k)

220    Ben left Flaxton Gardens between 1 and 1:30 am on 13 January 2019. Jana and Alan were then alone. Sam’s evidence, which was not challenged in cross-examination, was that Jana entered her bedroom at approximately 4.30 am, laid on the bed next to her and was shaking, crying and hysterical. I have set out part of her evidence above. The Tumblr post that she made at 5:50 am reads (errors in original):

It breaks my heart that this is one of the first things I write in here about my new year.

It was 4:30 am when she came into my room. I was awake. She was shaking & crying. She was moving like she was blind. She cried & told me something has happened. Something bad. Something unspeakable & that she doesn’t want to tel me what happened. I tried calming her dam. She was historical. When she got the words “Alan had sex with me” my whole body curled with disgust. Not at her but with him. What the fuck. Like what the fuck! She said he took her upstairs through the winery & she said no & told him to stop but eventually gave in because she had no idea what was even happening. When she came into my room earlier in the night she was fucked. I could tell she was well & truely not in the state to make any rational decisions. She said they taped after & she told him she doesn’t want him to be like his step that milested his sister. She kept saying he told her he was in love with her & kept kissing her. She told me she was going to kill herself because she could not deal with this type of pain over again. She said she can’t talk to James about this because he will just blame her. How she didn’t want to hurt mum. How could this happen again God? Why her! Why would you let her go through all this again? She thinks the only way out of this is to leave & let everyone get on with their lives that she is wrong. This will kill everyone more than finding out what happened. I don’t know what to do. I am lost, confused & so ducking mad I could kill Alan tonight. How could he do this to her & to my mum? Alcohol & stress is not an excuse and I will never look at him the same way. Our lives have never been normal but this is just fucked up on a whole other level. Why her? Why her? Hasn’t she been through enough?

I will never look at this house the same again & I never want to leave her alone. Not even for a second. If she leaves me. What do I do

221    The cross-examination of Sam was relatively brief. She was first asked a series of questions about a statement that she had given to the Queensland Police Service dated 18 June 2020. The document was received in evidence before the primary judge. Sam was invited to read paragraphs [22]-[27] which provide:

Jana came into my room at 4:30AM on 13 January 2019. I checked the time on my phone when she came in. When Jana walked into my room, it was like a blind person trying to see. She was patting for everything trying to feel around the room and she was just sobbing hysterically. I had never seen her in such a state in my life. Jana couldn’t talk. She had tears coming out snot everywhere and she was crying these silent cries where nothing was coming out.

I was trying to get Jana to talk. Jana kept saying “Something bad has happened. Something bad happened. I can’t tell you.”

I just kept trying to push her and get it out and she was just crying saying “Not again. I can’t do this again. I can’t go through all this again”.

That’s when Jana said “Alan had sex with me”. I remember I just went numb.

I didn’t know how to respond. I was just holding her as Jana was telling me “I’m going to kill myself. I can’t do this again”.

Jana was then talking about mum and how she couldn’t tell her husband. I then remember trying to get Jana in bed. I was just holding her the whole time when she was crying. I didn’t sleep. I kept watching her not wanting to leave her. I was filled with rage towards Alan.

222    The cross-examination simply confirmed that in the statement Sam did not mention non-consensual sex. She was next taken to an extract from her evidence in the trial in the District Court which the primary judge also received in evidence. Her attention was directed to evidence that she gave under cross-examination. In that evidence, she did not mention that her sister had said that the sex was non-consensual. Her answer to the question was: “I didn’t elaborate on the conversation any more than that”.

223    Sam was then taken to the Tumblr post. It was put to her that the document was in part amended at a later point in time. The question and answer was:

Now Ms Kruger, I’m going to suggest to you that, in fact, that’s what has happened with this post, that you have created that post at some point, but then, subsequently, you’ve gone in and edited it to change up the contents so that it now reflects the proposition that your sister Jana did tell you, “I kept saying no, and he kept going”? --- That’s not correct.

224    No other questions were put to Sam about the authenticity of her Tumblr post. I have set out her evidence in re-examination about how the Tumblr App records the time of making her post.

225    As I have noted, the primary judge at PJ [84] concluded that Sam’s evidence “was of little weight”. That is a conclusion about the entirety of her evidence. I am unable to accept that his Honour’s process of reasoning supports his conclusion.

226    The reasons at PJ [78] fix on a difference in wording between Sam’s affidavit: “Something has happened” and “Alan had sex with me” and the wording of part of the Tumblr post: “Something bad. Something unspeakable & that she doesn’t want to tell me what happened”.

227    This difference led his Honour to the conclusion that the Tumblr post: “Was not intended to be a verbatim recording of what was said between she and [Jana] at the time, but rather was an attempt to record what she said [Jana] had said to her, as well as her having recorded what her own personal feelings were”: PJ [78].

228    That reasoning is unsupported by a rational foundation and misunderstands the Tumblr post. It is plainly evident from reading the entirety of the post that it records deeply personal observations that Sam made of her sister from 4:30 am; statements that her sister made to her in the course of their conversation and the reaction of Sam to what she had been told, including her own thoughts and feelings. It is a heartfelt, raw and authentic account of a young woman, herself in a state of distress. It does not purport to be a “verbatim recording” of a conversation. Sam in her evidence did not say that it was. But this hardly detracts from the fact that it is in part a contemporaneous documentary record of a recent complaint of sexual assault and the observations made of the state of distress of Jana. It was erroneous for the primary judge to put aside the entire Tumblr post based on his misunderstanding of what it is and records.

229    His Honour’s misunderstanding is compounded by the confused reasoning in the second sentence at PJ [78], where he said that the document “was an attempt to record what she said [Jana] had said to her”. There is no analysis by his Honour which supports that conclusion. Sam rejected the proposition put to her in cross-examination that the Tumblr post had been edited after it was made in order to align with Jana’s evidence that the sex was without consent. It was not put to her that the Tumblr post was inaccurate in any other respect or was not a contemporaneous note. There was no basis for the primary judge to conclude that the document was “an attempt” to record what was discussed, rather than a document created from actual recollection as to what was said.

230    The primary judge at PJ [79] focused on a difference he asserted in the punctuation of part of the text: Sam italicised “Alan had sex with me” but did not italicise the words “she said no & told him to stop”, which led his Honour to conclude that he was “unconvinced that those words were in fact said” by Jana and, even if they were, he did not accept Sam’s evidence as truthful: PJ [79].

231    That conclusion rests on a misreading of the document and exposes a further error. No portion of the text is italicised. Quotations are used once: “Alan had sex with me”. Assuming his Honour meant to refer to any inconsistency in the use of punctuation marks for direct quotes, no question was put to Sam in cross-examination about the significance of her punctuation. The document is replete with grammatical infelicities, misplaced full stops, misuse of ampersands and spelling errors. The document contains other evidence of Jana’s direct speech which do not have quotation marks. The task of assessing the probity of this evidence did not call for a syntactical dissection of Sam’s grammar, punctuation or spelling.

232    The primary judge at PJ [80], reached another conclusion from the Tumblr post: it evidences that Sam was then convinced about Alan’s guilt and therefore she was not an impartial witness. There is no support for that reasoning in the evidence. Sam was only challenged in cross-examination about one statement in the Tumblr post: whether she had “created that post at some point, but then, subsequently, you’ve gone in and edited it to change up the contents so that it now reflects the proposition that your sister Jana did tell you, “I kept saying no, and he kept going”. Sam denied that she had later altered the post to include this statement. The cross-examination then concluded without further exploration of Sam’s evidence that the post was a contemporaneous record. The primary judge did not resolve that issue. Rather he chose a new pathway that was not put to Sam when she gave evidence. That was an error.

233    It was a further error for his Honour to cast aside the entirety of Sam’s evidence because he concluded she was a partisan witness. His Honour failed to undertake any assessment of the extent to which her evidence was consistent with that of Jana. He overlooked that her credit was not put in issue in her cross-examination. He failed to reveal why Sam’s recording of her personal feelings upon being told by her sobbing, hysterical sister that her stepfather had raped her affected her credibility. The reasoning at PJ [80] is illogical. That Sam believed her sister and was mad at Alan is an entirely understandable reaction to what she had been told. That in consequence she believed Alan to be guilty of rape does not make her evidence of what she was told by her sister, or what she observed, to be untrue. The fact in issue was whether Jana entered her room at 4:30 am in a distressed state and made a complaint of having been sexually assaulted by her stepfather. Sam’s angry reaction bears no logical connection to his Honour’s conclusion that she was not an impartial witness. It is utterly implausible that Sam would have reacted differently.

234    There is a further error in this component of the analysis of the primary judge. The entirety of the evidence of Sam, including the Tumblr post, should have been brought to account as relevant and highly probative of what occurred between Jana and Alan in the Bridal Suite. Rather than proceed in that orthodox way, the primary judge at PJ [83], found that what Jana said to Sam “was not probative of anything that [Jana] said had occurred in the Bridal Suite”. That reasoning is indefensibly contrary to principle.

235    Dealing first with Jana’s appearance and emotional state, evidence of distress is always relevant in sexual assault cases. In Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [78], McHugh J said:

Evidence of distress on the part of a complainant is always relevant, within the meaning of [s 55 of the Evidence Act], to a charge of sexual assault. A complainant who has been sexually assaulted may, but will not necessarily, display outward signs of distress after the assault. Evidence of distress tends to prove that the complainant had been sexually assaulted.

236    The High Court very recently approved that passage in The King v Ryan Churchill (a pseudonym) [2025] HCA 11 at [25] where the issue concerned jury directions about distress evidence. Chief Justice Gageler, Gordon, Gleeson, Jagot and Beech-Jones JJ continued at [27]:

Ordinarily, like evidence of the complaint itself, evidence of distress on the part of a complainant at the time of making a complaint is evidence that is relevant in the trial within the meaning of s 55 of the Evidence Act on either or both of two bases: first, as evidence that, if accepted, could support the credit of the complainant if the jury were to find a causal connection between the distress and the making of the complaint, and second, as evidence that, if accepted, could support the occurrence of the offending if the jury were to find a causal connection between the distress and the offending. On either basis, the evidence could rationally indirectly affect the assessment of the probability of the existence of a fact in issue – namely, whether the offending occurred – and is therefore relevant within the meaning of s 55.

237    Although the primary judge was not dealing with a criminal case of sexual assault, that does not detract from Sam’s evidence as to her sister’s state of distress, which was clearly probative as to what occurred between her and Alan in the Bridal Suite. An extraordinary aspect of the reasoning of the primary judge is that he paid no attention to the obvious question that arose from this evidence: if Jana had entered the Bridal Suite with the joint “amorous intent” (which the primary judge attributed to her at PJ [58]), how is that consistent with her state of distress shortly thereafter? What rational reason could explain this? The primary judge’s reasons cannot be reconciled with the obvious answer that Jana had been raped by her stepfather.

238    Further, Sam’s evidence of what Jana said is plainly relevant for the same reasons. Recent complaint evidence in a criminal proceeding is relevant to credibility and as to the truth of what is asserted where the conditions in s 66(2) of the Evidence Act are met: Papakosmas. The evidence was admissible in the civil proceeding before the primary judge pursuant to s 64(3) of the Evidence Act. In any event, no admissibility objection was taken. The primary judge overlooked this. In doing so he failed to appreciate the significance of recent complaint evidence in this case.

239    Consider the facts in Papakosmas where the accused and the complainant attended a work-related Christmas function. Each became affected by alcohol and engaged in conversation about sexual matters. The complainant was intercepted by the accused upon leaving a toilet. She was taken into a room where he attempted to kiss her and unsuccessfully attempted to persuade her to perform fellatio. He then forced her to have intercourse. When he was done he left the room, she vomited and then went to the bathroom and washed her face and her underwear. When she left the bathroom she encountered a workmate, Ms Ovadia. She was crying. Ms Ovadia asked her what was wrong and she responded that she had been raped by the accused. Ms Ovadia took the complainant outside where she made the same complaint to other persons. Relevant for present purposes are the observations made by Gleeson CJ and Hayne J generally and as to this evidence at [31]:

It is possible to imagine circumstances in which evidence of the fact that a complaint of an alleged crime has been made might be evidence that could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. For example, the nature of the complaint, the circumstances in which it was made, or matters personal to the complainant, might provide a reason why that could be so. However, the present case does not raise an issue of that kind. As the trial judge warned the jury, the fact that an assertion is repeated does not make it any less untrue if it were untrue to begin with. Furthermore, some complaints may be made in circumstances which require particular attention to be given to the danger of fabrication. However, in the circumstances of the present case, it is impossible to deny that the evidence of the complaints made to the three witnesses in question could be regarded by the jury as affecting their assessment of the probability that there was no consent to the intercourse.

240    The primary judge did not reason that the evidence of Sam could not rationally affect the probability that Alan had raped her sister. A consequence is that it was wrong for the primary judge to cast aside the evidence of Sam as not probative as to what occurred in the Bridal Suite.

241    For these reasons, this ground succeeds.

The intoxication and medication evidence: grounds 2 (a)

242    It is necessary to revisit portions of the evidence for emphasis.

243    Jana’s affidavit evidence was that, at approximately 7 pm during the Summer Showcase event, she poured herself a glass of champagne. She consumed two more glasses to 9 pm. From 9 pm she consumed one or two espresso martinis. Alan then made for her several whiskey and Coke drinks. She does not recall how many of those she consumed. This consumption caused her to feel intoxicated; so much so that when dancing with Mariana the two of them “were nearly falling over when twirling around”. She does not recall what time it was when she left the winery area and proceeded to her bedroom at the residence. On arrival she began her nightly routine of taking her medication: 150 mg Zoloft, two 5 mg tablets of diazepam, one melatonin tablet and one low-dose Stilnox tablet. She then left the residence to look for her mother.

244    Jana confirmed that evidence in cross-examination and was not challenged on it.    

245    She returned to the winery and sat down on a couch. At that point she began to feel drowsy. She drifted off to sleep. She felt “extremely affected by the medication”. This affected her recollection of subsequent events which she described as “in pieces and fragments”. She next recalls being at the top of the stairs of the mezzanine area where she was blowing out candles. She sat down, “because I was really feeling the effects of the medication” and described her vision as “blurred and I felt disoriented”.

246    Before she entered the Bridal Suite with Alan her evidence was: “My body felt really tired and I found it hard to move”. She was not able to resist Alan. She said: “I was too weak and affected by the medication to push him off”.

247    Sam’s affidavit evidence was that when Jana entered her bedroom to retrieve a pillow, she said to her sister “that she was drunk”. Sam also stated in her affidavit that she had observed her sister take her medications “nearly every night that we spent together, which was sometimes as often as two or three nights per week”.

248    James in his affidavit said that Jana took her medications every day, which he listed by name and dosage. He was not cross-examined on that evidence.

249    Ben in his affidavit said that to his observation Jana was drinking, he did not notice how many drinks she had but she “was a bit tipsy and was in a relaxed, bubbly mood” – and described her behaviour as a person who had consumed between three and four drinks, but not to the extent that he was concerned about her ability to function or to make decisions.

250    In cross-examination Ben was challenged about a statement he had made for the criminal proceeding which included that Jana was slurring her words and struggling to stand up, which he did not include in his affidavit in the proceeding before the primary judge. Ben confirmed that his police statement was correct when he made it in July 2020. He could not give any explanation as to why he had not included that evidence in his affidavit. His police statement was admitted into evidence.

251    Mariana in her affidavit stated that she noticed that Jana and Alan were drinking whiskey. When she left the winery with her daughter, Jana “seemed very tipsy but could walk by herself”.

252    In cross-examination, Mariana said that she did not notice any occasion when, after consuming her medication, Jana was unsteady on her feet or had fallen asleep. She gave as the reason that Jana would normally take medications just before retiring to bed. She had not observed any occasion when Jana mixed her medication with alcohol with consequential adverse effects.

253    Dr De Leacy in evidence-in-chief said that diazepam is Valium, melatonin is a natural type of sleeping tablet, Stilnox is a sedative and Zoloft is an antidepressant. He was asked for his opinion as to the effects of this medication if taken in addition to the consumption of alcohol. He answered:

Well, the alcohol would have a significant additive effect, and I think a person in this situation would be extremely sedated, mentally, but physically compromised as well because the blood pressure would have dropped. The person would feel weak, probably dizzy, as well as fatigued, and possibly slightly confused.

254    The primary judge asked him to assume that Jana had consumed between six and eight glasses of champagne before 12:30 am followed by a whiskey or two. When asked about the physical effect of that combination, he responded:

Physical effect of lowering blood pressure, making the person weak, tired, quite confused, likely and – yes. Could be quite confused.

255    The questioning then returned to counsel for Jana. He asked whether combining the medications with alcohol would have an impact on a person’s memory. Dr De Leacy responded:

Well, this is an interesting point. Alcohol – look, diazepam, Valium, is well known to have a marked effect on memory in high doses. The dose she took would not have been the type of dose that would have a significant effect on memory. It’s usually the level that is done with intravenous diazepam in an operation or something like that, and people wake up with no memory. It’s unlikely to occur with a therapeutic dose to have a significant memory loss. I think the alcohol could have an effect on memory. Often the day after drinking, the memory is somewhat hazy, to use a common expression.

256    The questions and answers continued in chief:

But what if, at the time of – all 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?---Actually, stressful events are more readily registered and retained.

Remembered?--- 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.

257    His evidence-in-chief then concluded, and he was not relevantly cross-examined on this opinion evidence.

258    The primary judge at PJ [19], in his reproduction of almost the entirety of the affidavit of Ben, included his evidence that Jana “did not seem to me” to be affected by drugs or alcohol in a way which caused Ben to be concerned about her ability to function or to make decisions. At PJ [20] the primary judge reproduced the cross-examination of Ben about the evidence contained in his earlier police statement and the inconsistency between it and his affidavit evidence. Without any reconciliation of the inconsistency, the primary judge at PJ [21] accepted the evidence of Ben “in all respects”. It was plainly a mistake for his Honour to proceed in that way, without resolving the inconsistency.

259    From that mistake, the primary judge then moved, when considering the candles at the top of the stairs evidence from PJ [35], to reject Jana’s evidence that she was “extremely affected by medication/intoxication, or a combination of both” (PJ [41]). Subsequently, his Honour moved to the finding at PJ [42] that Jana “was not as affected by medication or alcohol as she claimed she was”, because “she was able to ascend the stairs by herself – there was no evidence that she needed assistance to do so – points to her being in physical control of what she was doing at the time”. In that reasoning, the primary judge found that Jana “was most likely a willing participant in her entry into the Bridal Suite with [Alan]”: PJ [44].

260    That reasoning and conclusion is untenable. It overlooks critical aspects of the evidence. It ignores all of the unchallenged evidence from Jana that she took her medications, she felt drowsy shortly after doing so and was significantly affected by the combined effects of her medication and alcohol consumption. It ignores the evidence of Sam that when her sister entered her bedroom to retrieve a pillow, she was drunk. It ignores the evidence of Ben in cross-examination that Jana, before he left the winery, was slurring her words and was struggling to stand up. It ignores the evidence of Mariana that her daughter seemed “very tipsy”. It ignores the evidence of Dr De Leacy that the medication in combination with alcohol would likely have the effect of sedation, dizziness and confusion.

261    His Honour’s conclusions depend on speculative reasoning and lack any rational foundation in the evidence.

262    This ground succeeds.

The sexualised conduct findings: grounds 2 (b), (c) and (h)

263    At PJ [21], in accepting the evidence of Ben, the primary judge concluded that when Jana sat in the lap of Alan, Ben felt uncomfortable because she behaved “in such a sexualised way”. At PJ [25], his Honour found that Mariana felt “uncomfortable because of the sexualised nature” of Jana’s conduct whilst they were dancing and then sitting next to each other on the sofa. At PJ [44], his Honour in describing the conduct as “tawdry”, found that Jana was a willing participant upon entry to the Bridal Suite, which in his view was consistent with “both of them having accelerated to a higher level the already sexualised tensions evident between them” which caused Ben to feel uncomfortable. At PJ [52], his Honour characterised the conduct of Jana and Alan before entry to the Bridal Suite as “sexualised”, which then caused his Honour to reason that “there are no hard and fast rules as to what will necessarily next transpire between them behind closed doors”. At PJ [57], his Honour returned to the evidence of Ben, concerning the interaction between Jana and Alan on the sofa in the winery, which his Honour found was “both highly sexualised and consensual”.

264    None of these conclusions can be accepted as founded in the evidence. The findings mischaracterise the evidence of Ben and Mariana. Ben in his affidavit went no further than stating that the physical interactions between Jana and Alan made him feel uncomfortable and, to his assessment, there was “a sexual element in those interactions”. In his police statement he said that on one occasion Jana sat briefly on his lap and that “she seemed likely she was having fun and seemed quite flirtatious” (sic). In his evidence in the criminal trial, he was asked a very leading question by the prosecutor and gave evidence that:

Your' re saying that she was snuggling up to Alan and, in fact, sitting on his lap?--- Yes.

--- On occasion?---Yes.

Yeah. That snuggling up and sitting up: did that look like it had a sexual element to it?---Yes, it did, and it stuck out to me, because it made me feel uncomfortable because it was…

I understand?---The relationship – the – the stepfather – stepdaughter relationship.

265    Mariana in her affidavit went no further than stating that Jana’s conduct made her feel uncomfortable. In her police statement, Mariana said that Jana was touching her which caused her to feel uncomfortable and that she was “getting sexy” and Mariana became embarrassed. In her evidence in the criminal proceeding, in answers to the cross-examination of counsel for Alan, she accepted that Jana was dancing and her behaviour became “more and more playful”, (which made her feel uncomfortable) and then:

You were uncomfortable with her behaviour---? ---Yeah.

Because it was sexualised-tight behaviour, wasn’t it?---Yeah. You know---

Yeah? --- As a – as a mother, I didn’t enjoy that.

Yeah. Very flirtatious? ---Yeah.

On the dance floor, she was flirtatious to you? --- Yes.

Grinding up against you and---? ---Yes.

--- Things like that. Yeah. So the sofa seating area, there was a time – and you’ve actually scolded her for it in a way an adult mother could to an adult daughter, I expect? --- Yeah. Yeah.

266    The evidence does not support the findings of the primary judge that Jana’s behaviour towards Alan was sexualised or highly sexualised. That was another error.

267    These grounds are made out.

The medical evidence: grounds 2 (g) and (i)

268    At PJ [47(m)] the primary judge was critical of the fact that Jana did not call Dr Chris Martin in support of her case. Dr Martin was Jana’s long-term treating psychiatrist. In around 2013, after telling James about the childhood abuse she had suffered, Jana consulted her general practitioner, then a psychologist and ultimately Dr Martin. Initially at least, she had fortnightly consultations with Dr Martin. Her evidence was that he diagnosed her with PTSD and anxiety with depressed mood symptoms. Following the events in question, Dr Martin continued to be Jana’s treating psychiatrist until approximately 2021. In her support of her case, her lawyers requested an assessment and independent expert report from Dr De Leacy.

269    The primary judge reasoned that “in the ordinary course of events” one would expect Dr Martin to have been called in support of the compensation case, describing him as a person who would “reasonably be perceived as a person in [Jana’s] corner”. His Honour also found:

Dr Martin would reasonably be perceived as someone who could have given cogent evidence about the medication prescribed for [Jana], the recommended dosages of such medication, and the frequency with which such medication was to be taken.

Dr Martin would reasonably be perceived as someone who could have assisted the Court in assessing what effect the combined consumption by [Jana] of any medication prescribed for her together with alcohol consumption would have had upon her.

270    His Honour next found, because Dr De Leacy had only once consulted Jana using remote technology, that:

His opinions concerning [Jana] hold far less gravitas than what the opinions of Dr Martin would have been had he been called as a witness (sic).

271    From those premises his Honour concluded:

The Court is satisfied that no good reason has been advanced on behalf of [Jana]as to why Dr Martin was not called as a witness on [Jana’s] behalf. The Court has accordingly drawn an adverse inference against [Jana] that the evidence which could have been adduced through Dr Martin would not have assisted her case, either on the question of liability, or in respect of compensation/damages issues.

272    Once again, the reasoning is untenable. As I have noted, Jana gave uncontradicted and unchallenged evidence as to the medication and the dosage that she consumed on the evening of 12 January, which evidence the primary judge overlooked. His Honour had the benefit of expert opinion evidence from Dr De Leacy as to the combined effect of Jana’s medication with alcohol, but overlooked that evidence as well. His Honour failed to explain why it was open to cast aside the opinions of Dr De Leacy as having less weight than any opinion that may have been expressed by Dr Martin. His Honour did not explain how any evidence from Dr Martin may have assisted Jana on her liability case.

273    The primary judge made another mistake at PJ [61] when he considered the evidence of Dr De Leacy as to the effect on memory of Jana’s medications when combined with her alcohol consumption, which I have set out above at [200] and [255]-[256]. His Honour’s finding at PJ [61] (set out above at [201]) was to the effect he disbelieved Jana because her recollection of events prior to entry to the Bridal Suite was imperfect.

274    The manifest error is that this reasoning misunderstands the evidence of Dr De Leacy. His opinion was that alcohol could have an effect on memory. That is a commonly understood phenomenon, which he described as “memory is somewhat hazy” a day after drinking alcohol. He then distinguished between stressful and ordinary memories; the latter tend to be indelible. Erroneously, the primary judge bundled together all of the “events” of 12 and 13 January without distinguishing between ordinary and stressful events and without acknowledging the impact that alcohol consumption has on memory recall.

275    This also explains why the primary judge was wrong to draw an adverse inference from the evidence given by Jana that she went to this top of the stairs to extinguish candles, whereupon she sat down and Alan sat next to her. His Honour found this evidence unconvincing for five reasons. None is satisfactory. Jana was in error in believing that she ascended the stairs to extinguish candles; she was contradicted by photographs and the evidence of Mariana and Alan: PJ [38]-[40]. However, that does not lead to the conclusion that her evidence should be rejected on other issues. His Honour did not bring to account the likelihood that Jana’s memory was imperfect by reason of the combined effect of her medication and alcohol consumption. He repeated that error at PJ [47(a)] when giving it as a reason why he found Jana to be an unsatisfactory witness.

276    His Honour also erred when he engaged in impermissible speculation at PJ [41], in giving as his fourth reason for rejecting Jana’s evidence, that if she was affected by her medication and her alcohol consumption as claimed then it was improbable that she would have been capable of climbing two flights of stairs. The error as explained, is in overlooking the uncontradicted evidence of Jana’s intoxicated state before consuming her medication and the combined effect of each when she returned to the winery. The speculative element is that his Honour reached that conclusion on the implicit assumption that there was no stair railing. There was stair railing according to the photographic evidence put to Dr De Leacy in cross-examination. Dr De Leacy’s opinion was then that Jana “probably…could have coped with that using a railing”.

277    A further error is that his Honour, as I have explained, overlooked the evidence of the state of distress and of the making of a recent complaint of rape by Jana to her sister at 4:30 am on 13 January. This makes untenable the conclusion that the Bridal Suite event was neither stressful nor traumatic.

278    These grounds are made out.

The wedding reception findings: ground 2(j)

279    His Honour made findings about the wedding reception of Jana and James on 12 December 2019 at Flaxton Gardens at PJ [62]-[65]. He commenced by acknowledging that Mariana under cross-examination accepted that her affidavit evidence, to the effect that during the formal speeches Jana referenced Alan as “a good person”, was wrong. At PJ [63] his Honour set out a portion of the evidence of Mariana under cross-examination where, to use his Honour’s description, she was “adamant” that if this was not said during the speeches, it was at some other point during the reception.

280    Assuming that his Honour made that finding, which is unclear from the structure of the reasons, there was no attempt to reconcile the mistake that Mariana admitted to in her affidavit where she deposed, without equivocation, that it was during the formal speeches made at the wedding that Jana said words about Alan to the effect: “Thank you for your all your assistance and for being a good person”. At PJ [64] his Honour said that there was “no reason why Mariana would have given false evidence to the Court under oath”, but that is not to the point. The question that his Honour should have addressed is whether her evidence about what was said during the speech was mistaken.

281    At PJ [65], his Honour found as “implausible and bizarre” that Jana would have agreed to hold her wedding reception at Flaxton Gardens if she had been raped by Alan at the venue. It is difficult to understand why that characterisation of Jana’s conduct flows from the fact that her wedding was held at Flaxton Gardens almost 12 months after the events in issue.

282    In any event, there was an explanation that his Honour overlooked. Jana in her primary affidavit said that on 30 August 2019, James asked her to marry him. Her evidence continued:

I was so happy, but I knew that my mother would want us to get married at Flaxton. When I spoke to her about it, she insisted that we get married at Flaxton and she said that she and Alan would give us a discount.

My mother said she wanted us to get married at Flaxton because she and Alan could not afford to contribute to our wedding otherwise, like many parents typically did. She said that if we had the wedding at Flaxton, it would be her and Alan’s gift, and she could help me plan it.

I was annoyed that she was insistent, and I felt like I had to agree. I suggested the date 12 December 2019, because it was the anniversary of James and I’s (sic) first date.

At this time, I just wanted to put the Sexual Harassment out of my mind. I focused on my wedding to James and spent a lot of time planning it.

283    Jana’s evidence continued that by September 2019, she could not continue working at Flaxton Gardens. She discussed that with her mother, told her how unhappy she was and that her mother needed to leave Alan and acknowledge what had happened. She told her mother that she did not want to have her wedding at Flaxton Gardens, her mother told her that she did not want to leave Alan and in response Jana advised that she was quitting her employment. For the balance of 2019, Jana avoided contact with Alan “as much as I could”. When she could not, she was polite but “tried to ignore him as much as possible. I was incredibly uncomfortable around him.”

284    In her affidavit, Mariana said that in the middle of 2019, Jana approached her and told her that she wanted to get married on 12 December at Flaxton Gardens. She also said that Jana had already checked the booking system and was aware that 12 December 2019 was available.

285    Jana was cross-examined on her evidence but was not directly challenged as to the conversation that she said occurred with her mother. She was taken to the transcript of the criminal trial in the District Court, where it was put to her a version of the events broadly consistent with Mariana’s evidence, and she gave a non-responsive answer. She was not further pursued. It was not directly put to her that Mariana’s version of the events was correct or that Jana’s affidavit evidence was incorrect.

286    Mariana was not cross-examined about her recollection of this conversation.

287    The primary judge failed to make a rational finding based on the evidence about why Jana held her wedding at Flaxton Gardens. On that basis it was erroneous for his Honour to conclude that the fact of holding the wedding at the venue was both implausible and bizarre.

288    This ground succeeds.

The appeal succeeds

289    It has not been necessary to deal seriatim with every appeal ground in order to demonstrate why the primary judge misused his advantage and materially erred in ordering that the proceeding be dismissed. Whilst the primary judge reasoned that he was not satisfied that Jana had discharged her onus of proof, because he concluded that she was an unsatisfactory witness and aspects of her evidence were also implausible and unsatisfactory (PJ [46], [85]-[87]), those were not demeanour findings. The primary judge made no pure adverse demeanour finding of Jana. As I have demonstrated, the ultimate findings arise from multiple anterior errors “in the comprehension, recollection and evaluation of the evidence”: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [24], Gleeson CJ, Gummow and Kirby JJ.

290    The appeal must be allowed and the order made set aside.

Retrial or redetermination?

291    Jana’s primary submission is that this Court should proceed to determine the claim and enter judgment in her favour in the form of declaratory relief and compensation. As formulated in her amended notice of appeal, she claims:

(a)    A declaration that the First Respondent contravened s 28B of the SDA in respect of each of the matters identified in Appeal Ground 1.

(b)    A declaration that, by reason of s 106(1) of the SDA, the Second Respondent

contravened s 28B of the SDA in respect of each of the matters identified in Appeal Ground 1.

(c)    An order pursuant to s 46PO of the Commission Act that the First and Second Respondents pay compensation in the amount of $300,000 in general damages to the Appellant.

(d)    An order that the First and Second Respondents pay the Appellant’s costs.

(e)    An order that the First and Second Respondents pay the Appellants costs of this appeal.

292    The respondents submit that if the appeal succeeds, the proceeding should be remitted to the Circuit Court for a new trial before a different judge. However, and quite properly, their counsel put submissions that if this Court proceeds on a redetermination, the proceeding should still be dismissed.

293    Only Jana and Alan can give direct evidence whether the foreplay on the sofa and on the stairs and the sexual intercourse in the Bridal Suite was with consent. Where credit looms as a large and potentially decisive issue, it is a reason to be cautious in deciding whether I should embark on my own assessment of the evidence and make findings accordingly. I have decided that I should proceed to conduct my own examination of the evidentiary record as contained in the Appeal Books. What may otherwise have been a significant obstacle to that course does not arise due to the manner of the conduct of the appeal. As I have noted, the primary judge found the evidence of Alan “in many respects unsatisfactory” (PJ [49]), such as to bring “his credibility into question” (PJ [51]) and that he could not “make findings consonant with” his evidence (PJ [85]). More particularly, his answers in cross-examination were “sometimes clumsy, verbose and initially unresponsive” (PJ [49]), exampled by the transcript extract at PJ [50], concerning his evasive admission to Mariana on 14 January.

294    Six more adverse credit findings are set out at PJ [51]; including evasiveness in cross-examination, giving contradictory evidence and admitted dishonesty in the account he gave to Mariana.

295    As noted, the respondents do not by Notice of Contention submit that the primary judge erred in his assessment of Alan’s credit. In the course of oral argument, we invited their counsel to respond to the submissions of Jana that, because there is an unchallenged finding that Alan’s evidence could not be accepted, if we proceed to the task of determining the claim afresh we should put aside the evidence of Alan to the extent that it is inconsistent with Jana’s case. In response, counsel submitted: “It’s not contended that Alan’s evidence should be accepted”. Counsel then qualified this with a submission to the effect that nonetheless the evidence cannot be ignored because it is “in the mix”. When we sought clarification of that submission, counsel initially accepted that on a redetermination we should not have regard to the evidence of Alan. However, the clarity of that submission then dissipated when counsel distinguished between Alan’s evidence as to what happened before entry to the Bridal Suite and what occurred therein. In counsel’s submission, it is only the latter evidence that the primary judge rejected as unsatisfactory.

296    With respect, that distinction is not open on the findings made by the primary judge. The adverse credit findings concern evidence given by Alan as to what occurred before entry to the Bridal Suite (PJ [51 (c), (d) and (f)]) and thereafter (PJ [51 (a) and (e)].

297    The inevitable consequence of the manner in which the respondents conducted the appeal, doubtless for sound forensic reasons, is that the evidence of Alan must be put to one side in my redetermination of the case based on the written record of the material included in the Appeal Books.

298    Justices Colvin and Abraham do not consider that this Court is able to make the findings that Jana contends should be made in order to grant to her declaratory relief and to award compensation. With respect, I disagree. In my view this is a case where the evidence permits the Court to give judgment as in all the circumstances it thinks fit: s 28(1)(b) Federal Court of Australia Act 1976 (Cth) (FCA Act). I accept that success on ground 2 does not establish Jana’s affirmative case. What is required is consideration of the evidence that the parties have forensically chosen to place before this Court. If the evidence is incomplete, the result may be that Jana does not obtain from this Court relief and there must be a retrial. Conversely, if there is enough evidence to find the material facts in her favour as to what occurred between her and Alan, she is entitled to relief despite gaps in the evidence available to this Court. Her entitlement pursuant to s 27 of the FCA Act is to a rehearing; a “real review” of the record of the evidence as presented where this Court is “not excused from the task of weighing conflicting evidence and drawing [its] own inferences and conclusions, though [it] should always bear in mind that [it has] neither seen nor heard the witnesses, and should make due allowance in this respect”: Fox v Percy at [25], Gleeson CJ, Gummow and Kirby JJ, quoting Dearman v Dearman (1908) 7 CLR 549 at 564. See also Lee v Lee at [55], Bell, Gageler, Nettle and Edelman JJ.

299    This is not to overlook the reasoning of Colvin and Abraham JJ at [60] that “we have not concluded that the rejection of Ms Kruger’s account was glaringly improbable or contrary to incontrovertible facts”. As I have explained at [213]-[214], that is not how the error was developed in argument. I have accepted in my detailed analysis of ground 2 that the primary judge committed many anterior errors which caused him to conclude that he could not accept the account of Jana. Those errors undermine the conclusions of the primary judge that Jana was an unsatisfactory witness which led to his erroneous conclusion that Jana’s evidence as to what occurred in the Bridal Suite was unpersuasive (PJ [56]) and then, by the mechanism of further cascading multiple errors, his Honour navigated to the ultimately indefensible conclusions at PJ [85]-[87] that he could not make findings of fact conformably with her evidence.

300     In my view this is not a case that requires appellant restraint unless the conclusions of the primary judge are glaringly improbable or contrary to compelling inferences. Here, the primary judge misused his trial advantage. His conclusions are erroneous, quite independently of his credit assessment of Jana. My analysis of ground 2 demonstrates that his Honour comprehensively misunderstood the evidence, overlooked important evidence and made findings of fact that were not open. In consequence, in my view this Court is obliged decide for itself whether on review of all the evidence as presented Jana’s case is made out: Lee v Lee at [55]-[56]; Queensland v Masson [2020] HCA 28; (2020) 94 ALJR 785 at [119], Nettle and Gordon JJ.

301    I also, with respect, disagree with Colvin and Abraham JJ at [60] that it is not open to this Court to “reach an affirmative conclusion on appeal that the evidence of [Jana] must be accepted as credible and reliable”. In my view, when all of the evidence is considered and weighed there is compelling support for her account. I now explain why.

The evidence

Jana

302    I do not repeat Jana’s evidence-in-chief that I have extensively set out above. The question is whether her evidence should be accepted considering the gravity of the matters alleged: Evidence Act, s 140(2)(c).

303    Part C of the Appeal Book contains the full transcript of Jana’s cross-examination. She commenced her evidence at 2.25 pm in the afternoon session on 20 May 2024. Apart from some brief matters in examination-in-chief, making the corrections to her affidavit that I have referred to, the cross-examination commenced 15 minutes later. Jana was cross-examined for the balance of that day until the Court adjourned at 5 pm. The cross-examination resumed at 9:11 am on 21 May 2024, and continued until the luncheon adjournment which commenced at noon. Upon resumption at 1 pm, the cross-examination continued until 1:37 pm. She was then re-examined.

304    Regrettably the cross-examination was not sequential and was often interrupted by a requirement that Jana leave the witness box when counsel put submissions to the primary judge.

305    Jana was first asked questions about a witness statement that she provided to the Queensland Police dated 3 June 2020. She confirmed that the copy produced to her was a true copy and the statements contained in it were true. For reasons that are not clear, cross-examining counsel did not then tender the document: it was marked for identification. Eventually however, it became Exhibit 6 in the proceeding. Another statement made by Jana to the Queensland Police Service dated 18 June 2020 was then identified, as an attachment to her affidavit in the proceeding. No further direct questions were put about either statement.

306    Jana was then questioned about her personal relationship with Alan. She accepted the following. From time to time, they would share an after-work drink together and on occasion they would drink to excess. That during “drinking sessions” it was not unusual for each to discuss problems in their personal lives. She denied however that they would discuss “intimacy issues”. She could not recall if Alan had discussed with her the fact that he was not having regular sex with Mariana, but accepted there may have been a discussion to that effect. She accepted the following matters. She had disclosed to Alan the fact that she had consulted a psychologist, they each spoke about the fact that each had suffered abuse as children and they discussed their mental health. In “some contexts” she discussed her relationship with James and that at times she considered his mother to be overbearing. Sometimes they discussed wanting to “escape from life’s problems”. The conversations extended to problems that Alan was having in his relationship with Mariana. However, she qualified the last answer by stating that the problems were “not necessarily” with Mariana, but extended to his unhappiness in general.

307    Jana considered Alan as a person she could relate to, they had in common their family relationship and their mental health issues arising from childhood trauma. She denied, however, that she felt able to confide in Alan by discussing matters that she would not raise with anyone else.

308    The questions then moved to the Summer Showcase event. There was produced a bundle of photographs taken at the event, which his Honour received in evidence as Exhibit 2. The photographs comprise images of individuals, in an apparently relaxed and jovial atmosphere. Jana accepted that she had “a couple of drinks” before the event concluded. She could not remember precisely how many. She was then questioned about matters that were not an issue: that she and Mariana remained at the venue upon conclusion of the event at approximately 8:30 pm with Alan and Ben. The participants moved between the winery and the main function area, and more alcohol was consumed. Alan and Ben were engaged in separate conversation. Jana and Mariana were singing and dancing. They were having a good time.

309    Jana denied that there was a “sexual element” to her playfulness with Mariana. In her evidence they were dancing happily together and at times they were contacting their bodies. She accepted that at least once she sat down and put her legs on top of her mother’s and ran her fingers through her mother’s hair. She accepted that at some point her mother asked her to stop doing so because it made her feel uncomfortable.

310    Mariana announced late in the evening that: “It’s time to go”, and Jana took that as her cue that it was time to leave the venue and she walked towards the residence. She denied that she resisted to the extent of arguing with her mother. She did not find it shocking when Alan removed his trousers and retained only his underwear because of his eczema.

311    Jana was not sure whether she spent something less than one hour sitting on the couch with her mother before they departed for the residence. In any event she accepted that she proceeded alone to walk to the residence, a distance of approximately 50 metres, even though she initially departed in the company of Mariana. A plan of the venue was produced and Jana marked on it connecting points in her pathway of travel. Although that document became an exhibit, it has not been included in the Appeal Books. In any event, the cross-examination on the document is not illuminating as to any fact material fact in issue.

312    Upon arrival at the residence, Jana entered Sam’s bedroom for the purpose of retrieving a pillow. She was questioned about her consumption of her medication and confirmed her evidence-in-chief. Jana was not challenged about the drugs taken or the dosages. In the course of the cross-examination, she gave confirming evidence that she habitually consumed her medications every evening before retiring to bed.

313    After taking her medications, she became concerned as to the whereabouts of Mariana. She first checked within the residence, including noticing that the door to her mother’s bedroom was open but she did not see her mother inside. Having determined that her mother was not in the residence, she went outside in search of her. The cross-examiner then interrupted the sequence of the evidence to return to what Mariana had said to the group in order to end the activities in the winery. Jana could not recall exactly the words used by her mother, whether they were directed specifically to her or to all of the individuals who were left.

314    The questions then returned to the reason why Jana left the residence. She again denied that she had earlier argued with her mother about the need to conclude the party and leave the winery. She denied that she had given false evidence as to her reasons for leaving the residence. Upon returning to the winery, she accepted as possible that she might have said to Ben and Alan that she had taken her medication. Somewhat confusingly, a few questions later, it was put to her that she had not made a statement to that effect, to which she responded that she did not remember whether she did.

315    Jana accepted that upon returning to the winery she sat down on a couch with Alan and Ben. She leant back on the couch and at times drifted off to sleep. She was alert to notice that Alan walked Ben out of the winery. It was then put to her that she had given inconsistent evidence in the criminal trial about being asleep on the couch. A portion of the transcript was produced and Jana was invited to read some of the evidence. In the criminal trial Jana had given evidence to the effect that upon returning to the winery, she sometimes sat on the couch and at other times went outside to have a smoke or vape. An objection was taken to the cross-examination on the basis that the passages put to Jana were selective and failed to identify the time point of that evidence. The primary judge ultimately did not rule on the objection on the basis that a more detailed portion of the transcript would be put to Jana.

316    Jana’s evidence continued. More of the transcript from the criminal trial was produced to her and she was given an opportunity to read the relevant pages. The transcript for 23 November 2021 was received as Exhibit 4. It is included in Part C of the Appeal Book. However, cross-examining counsel did not then put more questions to Jana about any asserted inconsistency in her evidence. The transcript references that were put to the witness are at page 38, lines 25-40, which comprised part of her cross-examination in the District Court. There is no material inconsistency between that evidence and her evidence in the Circuit Court proceeding. That she at times left the winery area and went outside to have a smoke, is not inconsistent with her evidence that when she sat on the couch she drifted off to sleep from time to time.

317    Having established that Jana remembered watching Alan walk Ben out of the winery, the questions turned to whether her next memory was of sitting at the top of the stairs with Alan. For that purpose Jana was taken to Exhibit 3, a floor plan of the venue. That exhibit is not included in Part C of the Appeal Book. Jana was invited to mark on that document the location of the staircase, which she did. She was questioned as to the location of other features, such as the function bar, the entrance, the location of wine barrels and the Bridal Suite. The purpose of these questions is not apparent in that it was common ground between the parties that there was a stairway leading from the winery area to a door which was an entrance to the Bridal Suite.

318    There was then produced to Jana a bundle of photographs depicting the Bridal Suite door and the stairway, which was received as Exhibit 5. That document is not included in Part C of the Appeal Book.

319    The questions then returned to Jana’s memory of noticing the departure of Ben. She accepted that Alan returned to the winery area alone. She confirmed that her next memory was of being at the top of the stairs. She had no memory of any intervening event. She could not recollect the time when Ben departed or when Alan returned. She could not recollect how long Alan was outside bidding goodbye to Ben. She said that she thought “maybe 10 minutes” elapsed between Alan’s return and finding herself on the stairs. Upon reaching the top of the stairs, Jana initially stood but later sat down.

320    A number of direct propositions were then put to Jana. She denied that she was outside the venue vaping when Ben departed. She denied that when she returned to the winery she sat next to Alan on a couch. She denied that she told him that she wanted to drink more whiskey and that she poured some mixed with Coke for herself. She denied that she continued a discussion with Alan concerning difficulties in her personal relationship. Her evidence continued:

And then at some point you sat on Alan’s lap and Alan massaged your shoulders? --- No.

…

MR HENRY: And then, at some point after that you took your shoes off, and you turned on the couch so that you could put your feet up on Alan’s lap? ---I did take my shoes off at some point. I can’t tell you when though.

And Alan started to give you a foot massage? --- No.

No. You said something to the effect that you were enjoying the foot massage - - -? --- No.

- - - and at some point you rearranged your dress so that more of your legs were exposed, and Mr Thomson began to massage higher up your calves? --- No.

And after some massaging you said, Alan that you were excited by the massage and something of the effect that, “Are you actually wanting to create a sexual feeling here”? --- No.

Alan responded to the effect that he was okay with that if you were? --- No.

You told Alan that you were okay with that. Alan continued to massage your feet and legs including your thighs? --- No.

After a little while you asked Alan if he was wanting this to go any further? --- No.

He responded that he was comfortable going further if you were? --- No.

You spoke briefly about both being adults and Alan said something to the effect that his relationship with your mum was looking pretty bad anyway? --- No.

That you and Alan then kissed, cuddled one another on the couch for a lengthy period, something like two hours? --- No.

But at some point your dress was unzipped and open and you each commented on how good you felt? --- No

I put to you that after a while one or the other of you suggested that you go upstairs together to the apartment? --- No.

You got up from the couch. You walked up the stairs. Alan tripped on his way up, and you were waiting for him at the top? --- No.

And Alan sat down next to you at the top of the stairs, and you kissed and cuddled some more? --- No.

That Alan asked you if you were sure you wanted to go into the apartment, and you responded that you did? --- No.

Now, I appreciate that you’ve said those things didn’t happen, but isn’t it your evidence that you don’t remember that period? --- I remember that – that – no. I do remember it.

Sorry. I thought your evidence earlier was that you had no memory of that period, but you – the next thing you remember you found yourself at the top of the stairs? --- Okay. So I’ll clarify that the next thing – by saying the next thing I remember is being at the top of the stairs is that was the next thing I did - - -

Yes? --- - - - when we were getting ready to shut down the venue.

Yes. But I’ve suggested to you that a number of things happened between Mr Thompson coming back into the venue and you finding yourself at the top of the stairs. And you’ve said you – those things didn’t happen, but you’ve also said you don’t have any other memories. I mean, you’ve said you have no memory between that period. So are you saying that you do remember, and that they didn’t happen? --- I’m saying I do remember, and that they didn’t happen.

321    Some objections were taken in Jana’s absence and eventually the primary judge adjourned Court for that day without Jana returning to the witness box.

322    Jana’s evidence resumed on the morning of 21 May 2024. She was first questioned about the corrections that she made to her affidavit in her evidence-in-chief. She confirmed that the changes were made to reflect her “most accurate memory” at the time of giving her evidence. Questions were then directed to evidence that Jana had given in the District Court by reference to Exhibit 4. Jana denied giving inconsistent evidence about falling asleep on the couch in the winery: she accepted that she did go outside to smoke, but whilst on the couch she was drifting in and out of sleep. She accepted that she engaged in some conversation with Ben and Alan. She could not recall whether she talked about her relationship with James. She denied saying that James was “a mummy’s boy” and did not provide her with support. She did not recall whether Alan poured her “a drink or two” whilst sitting on the couch or whether it was whiskey.

323    When it was put to her that she sat in the lap of Ben she answered: “That doesn’t sound like something I would do”. When pressed further, she said she did not remember doing so. When asked whether it was possible that it happened, again she answered that she did not remember doing so. She initially denied sitting in Alan’s lap. When pressed further about that, she answered: “I don’t remember. It is possible”. Similarly, she did not remember Alan resting his hand on her leg. She denied that she placed her hand on top of his. Rather than pursue these answers, the cross-examiner then moved to another topic: Jana’s recollection of what happened when Ben and Alan left the winery and whether she recalled Alan and Ben proceeding upstairs to the Bridal Suite. To that question, Jana answered that she observed them walking towards the stairs. Her attention was directed to another portion of the transcript in the District Court trial where she gave evidence that she remembered Alan and Ben proceeding upstairs, where the location of the Bridal Suite was identified for Ben. When the primary judge sought clarification of that evidence, Jana responded that she saw Ben and Alan walk towards a set of blue doors, that ultimately lead to the Bridal Suite, and that she simply assumed that they were intending to ascend the stairs. She did not recollect that they in fact did so.

324    Jana again denied that she did not observe Alan walk Ben out of the winery, denied that she was not present when Ben left and denied that she was outside vaping when he did so. She was then taken to her affidavit evidence about blowing out candles at the top of the stairs to assist Alan in locking up for the night. She was also taken to the transcript in the District Court trial where she had given similar evidence, but with the qualification that the candles may have been LED powered, rather than the traditional version. Jana confirmed that she had an actual memory of ascending the stairs to the purpose of extinguishing candles. Jana confirmed that she did not understand at the time that the stairs lead to a door into the Bridal Suite. She confirmed that there was “no other reason” to ascend the stairs other than to extinguish the candles. In the course of several more questions on the same topic, Jana once again confirmed that evidence.

325    Her attention was then drawn to Exhibit 2, a series of photographs taken during the Summer Showcase event. Those photographs did not depict any candles at the top of the stairs, which fact Jana confirmed. Jana denied the proposition that there had not been candles at the top of the stairs “for some years”. Despite the photographic evidence, Jana maintained that her reason for being at the top of the stairs was to extinguish the candles and denied as “that’s incorrect” the proposition that she ascended the stairs “with Alan to continue your sexual encounter”.

326    Continuing, with the preamble “moving on”, counsel confirmed that Jana’s next memory was that Alan sat down next to her at the top of the stairs. She accepted that they then engaged in conversation which covered the topics: his life, difficulties in his relationship with Mariana, he told her that he loved her and wanted her to be “his lover on the side” to which she responded: “What? I don’t agree”. Jana said that she clearly remembered each of those facts. Jana was then taken to further evidence she had given in the District Court trial when, in her evidence-in-chief, she said that she did not “exactly” recall what she said in response to Alan. The question was unfair, because it relied on an incomplete passage in her evidence. Despite that, it was not objected to. In any event, the entire transcript was admitted before the primary judge and is in Part C of the Appeal Book. The more complete account of her evidence is:

And when you sat on that stair, were you by yourself? --- Alan was next to me, sitting

there. And - - -

Can you just describe what happened from there, please? --- Yep. We were – we were talking. Alan was talking about how – there were a few things – but there was about how unhappy he was in his marriage to my mum. You know, how life wasn’t very good, how he hadn’t imagined it would end up like the way it had. And he was saying how easy I am to talk to, that we have a connection. Obviously, I agreed with some of the connection, but I – I was kind of, yeah, you know, listening being his confidante. And he was mentioning that he wanted to tell me that he loved me, that he really loved me, and that he wanted to have something with me on the side.

Just before you go on, had he ever said anything to you previously about loving you? --- No, not like that.

Okay. Did you say anything to him when he said he loved you and wanted to have something on the side? --- No, I don’t know exactly what I would’ve said. I would’ve been very shocked. I would’ve just said exactly what most people say, like, “No, that doesn’t” – I kind of joked, I think. I would’ve said, “I don’t think you mean that”.

Well, after you joked with him about it, from your point of view, did he say anything else to you? --- I don’t remember right now.

Okay? --- Yep.

Go on? --- And then he kissed me quite aggressively.

What do you mean by that? --- He kissed me, but impressed my face with his mouth.

Just his mouth? --- And tongue.

327    The entirety of that evidence was not pursued in cross-examination. Jana was next taken to a different portion of the District Court trial transcript during her cross-examination. The topic concerned her evidence as to what occurred at the top of the stairs. Jana was taken to sections of the transcript where she recalled that Alan used a key to open the door into the Bridal Suite, which key he “pulled out of somewhere”, and recalled that “he had a string around the key” but “was not sure whether it was around his neck”. That evidence was then contrasted with paragraphs in Jana’s police statements, each of which were to the effect that Alan used a key to unlock the door to the Bridal Suite. Her attention was then redirected to the photographs of the venue, one of which depicted the door to the Bridal Suite. It was put to her that: “There’s no lock on that door is there? There’s no place to put a key?”, to which Jana responded: “I don’t think so, no.” A further photograph, being a close-up of the door handle was shown to her. She accepted that it did not depict a keyhole for a lock. Some of the affidavit evidence of Alan was then put to her, to the effect that the door to the Bridal Suite cannot be opened from the winery side. Jana maintained her evidence that she remembered seeing a key in the door but was uncertain as to whether Alan unlocked the door.

328    At that point Jana’s counsel took an objection: the point being whether evidence would be led as to when the photographs were taken. Counsel for Alan said that he would. Counsel for Jana submitted that he could deal with it in his cross-examination of Alan. The primary judge did not therefore rule on the objection.

329    Jana’s evidence continued. The questions returned to the amendments that she had made to her affidavit at the commencement of her evidence-in-chief. Once again it was put to her that on each occasion that she had given evidence, her memory was that she observed Alan put a key into the lock of the door in order to open it. It was bluntly put to her that her evidence as to that was a fabrication, which she denied. She was further questioned about another amendment that she made: whether she discussed sexual intimacy matters with Alan or with Mariana. She amended her affidavit to confine those discussions to her mother. At this point the questions and answers became somewhat confused for the reason that the cross-examiner spoke across the witness. Eventually, Jana’s evidence was that when she made her affidavit she “remembered” that the discussion was with Alan, but in preparing for the trial of her proceeding she went through her evidence “with a fine-tooth comb” in order to “make sure that everything I say is correct”. She explained that she undertook that exercise “in the last couple of days”. It was then directly put to her that she had; “tailored” her evidence so as to align it with what she thought “will suit your case”, to which she answered: “That is incorrect”.

330    The questions then turned to what took place in the Bridal Suite. Jana confirmed that Alan guided her through the door and that each sat down on the bed. She was asked to confirm the location of items within the Bridal Suite by reference to a series of photographs, which were marked as Exhibit 7. Those photographs are not in Part C of the Appeal Book. In any event, Jana confirmed the location of various items of furniture as depicted in the photographs, as being in the same location when she and Alan were in the Bridal Suite.

331    Jana then confirmed that she laid down on the bed, Alan unzipped her dress and removed it. Jana disputed that it would have been difficult to do each of those things if she was lying on the bed, responding: “I didn’t say anything about it being easily removed”. She next confirmed that Alan removed her tampon and placed it in a bin in the ensuite bathroom. It was put to her, which she disputed, that her angle of view would not have permitted her to make that observation answering: “I could still turn my head”. That evidence was contrasted with a paragraph in her police statement where she had said of the placing of the tampon:

I don’t know how I knew this, but I knew that the tampon had been put into the bin. I don’t know who put it in there. I don’t know if it was me, but I don’t remember doing it. I don’t remember Alan putting it in there, too.

332    Jana accepted, somewhat obviously, that she had given different versions of this evidence. She was next questioned about inconsistencies in her evidence as to when she first noticed that her tampon had been placed in the ensuite bathroom bin, and in particular whether she had an actual recollection of observing it in the bin. Jana denied that she “realised” the inconsistency in her evidence and then decided to change it.

333    Non-sequential questions were then put to her as to whether she had given inconsistent evidence in the District Court trial about Alan “fluffing around” to make up the bed, after intercourse, to which she answered: “He was trying to get it ready for me to sleep in”. That answer was plainly not inconsistent with her evidence in the District Court trial that Alan “was making the bed”.

334    The questions then returned to the act of intercourse. Jana said that they were not under the covers or between the sheets answering: “I don’t know what there was. We were on top of everything.” Counsel had Jana confirm her evidence that she was “severely affected by medication” but nonetheless was able to speak clearly and recalled telling Alan “No” or words to the effect “No, I don’t want that”. Jana, in answer to several more questions, confirmed her affidavit evidence that she felt very heavy and could not move her body or control her limbs and was “too weak and affected by medication to push him off”. Following the act of intercourse, Jana got up from the bed and went to the ensuite toilet. She dressed, collected her shoes and then went back to the residence in the dark. When questioned as to how she was then physically mobile, given her earlier evidence, she answered: “I could feel a lot of adrenaline so I was able to… in trying to get out of that situation”.

335    Counsel put to Jana Alan’s version of events in a series of propositions, each of which Jana denied. Her evidence was:

Okay. Now, look, stepping back for a moment, Jana, I’m going to put to you, as I need to, an alternative version of what occurred when you went into the bedroom. I’m going to put to you that Alan has, in fact – you’ve gone to the bedroom with Alan. Alan sat down on the bed and you stood in front of him? --- No.

No. That Alan has taken his shirt off and while standing in front of him, you’ve take your dress and your underpants off and he has assisted you a little bit in that process? --- No.

That when that has occurred, he has giggled and said, “Oops, it looks like you’ve got a bit of a rat’s tail hanging out” referring to your tampon? --- No.

That from there, you’ve gone into the bathroom, sat on the toilet and taken the tampon out yourself? --- No.

And, in fact, it was you who said something to him along the lines of, “It’s all clean”? --- No.

And you placed that into the toilet – sorry, the rubbish bin beside the toilet? --- No.

No. But you’ve come back out into the bedroom part of the unit – into the bridal suite and by that stage Alan was under the sheets? --- No.

That you’ve gotten in under the sheets with him as well? --- No.

That Alan has said words to the effect, “Are you sure you want this?”? --- No.

That your reply was, “I need this”? --- No.

From there, you two have had sex where Alan was on top and you were underneath? --- No.

And, in fact, you helped guide his penis into your vagina. Sorry, Jana, would you like to take a break? --- I’m okay.

Okay.

HIS HONOUR: I think we will just give you a short break. Would you like some water? --- I’m fine, thank you.

336    Despite that answer, Jana was in a state of distress which caused his Honour to briefly adjourn. Jana’s evidence resumed approximately 15 minutes later as follows:

Now, Jana, I was in the process of putting to you a sequence of events for your comment, and I had just put to you that, in fact, you helped guide Alan’s penis into your vagina, and once he had entered, he said to you, “Are you okay?” And you responded, “It’s good”? --- .....

Now, I put it to you that it didn’t go on for very long because Alan stopped and rolled off you, and he apologised, not being able to go any further? --- No. And he wasn’t able to continue performing. And he apologised to you for that? --- Yes.

And, Jana, I put it to you that Alan then lay beside you and fell asleep? --- No.

And that at no stage during those events did you say “stop” or “no” or anything else that would indicate that you – this was not something that you wanted? --- Incorrect.

Okay. Now, moving on, Jana. You say that you then ran back to the house after going downstairs to collect your shoes, and you say you went straight into the bathroom and put your sleep clothes on? --- Yes.

Yes. So were those clothes in the bathroom, or did you have to collect them - - -? --- I don’t remember.

Okay. Then you say Alan came into the house. Did you see him come into the house? --- No, I heard him.

Okay. You heard him whispering, “Where are you”? --- Something like that, yes.

Yes. When you say you heard him – sorry, just to be clear, do you mean you heard the door opening or you heard him whispering, or was it something else? --- I don’t know, but something indicated his presence in the house.

337    Jana was next questioned as to her interaction with Alan when she had returned to the residence. Jana stated that she did not recall “exactly” Alan enquiring of her: “Are you all right”, but did accept that he made some enquiry of her and to which she might have responded “Yes” or words to that effect. She maintained her evidence that he offered to tuck her into bed.

338    Jana was then asked a of number of detailed questions about the timeline between Ben leaving the winery and her returning to the residence at approximately 4 am. Jana was unable to give precise answers to those questions.

339    She was next questioned about her conversation with Mariana in the evening of 13 January. Her evidence was:

Yes. And at some stage during the day, you and your sister, Sam, arranged for mum to come around to your place later that evening? --- Yes.

Yes. And your mum came around, and Sam was also there? --- Yes.

And you had a conversation with your mother and Sam about what happened the night before? --- Yes.

And you said to your mum, “Alan had sex with me last night”? --- I said that, plus without consent.

Yes. Sorry. Did you say, “Alan had sex with me without consent last night.” So the words you say you used? --- I think I would have used that, yes.

Well, I’m going to suggest to you that – sorry, I withdraw that. The words you say you used were without consent or words to that effect. Do you remember exactly what you said? --- I remember I didn’t use the word “rape” yet. I said, “without consent.”

Yes. Well, you’ve given some varying evidence about that in the District Court trial, haven’t you? And I will take that – I will take you to that now. Transcript 1-20 .....

…..

MR HENRY: And so at transcript – in that paragraph, Mr Cummings asks you:

Ms Kruger, do you remember what conversation you had with your mother? --- So she came around to my house, and Sam and I sat her down at my dining room table, and I told her something along the lines of, “Alan took advantage of me last night in the apartment.” I think I tried to tell her what happened. She started asking questions about it.

So that’s a different form of words put in that evidence, isn’t it? --- Well, I did say along the lines of.

Yes, understand? --- So - - -

But you accept that that was your evidence at the District Court trial? --- That the - - -

At least at that point? --- Yes.

340    Jana then denied that she had told Mariana and Sam that she and Alan only: “Had slept together and had sex”. Her evidence continued:

Your mum asked you, then, “Did you mean Ben?”? --- She did mistake it for that, yes.

No. Sorry. The question I asked was your mum asked you, “Do you mean Ben?”? --- She did ask that, yes.

Yes. And you’ve gone on to explain, “No, no. It was Alan”? --- Yes.

Your mum has asked you, “What do you want me to do about this?”? --- No.

Asked you, “Do you want me to leave Alan?”? --- Yes, yes.

Yes. And you said there was nothing for her to do, and that you would sort it out with Alan? --- No.

You said that nobody could ever know? --- No, I didn’t say that.

And you said, especially, that James could never find out about it? --- I did not want him to find out at the time, no.

Sorry. But did you say James could never find out about it or words to that effect? --- There’s a difference between “never” - - -

Yes, I understand? --- - - - and “at the time”.

All right. So what did you say? Did you say, “James is not to know,” or what was the form of words that you used? --- ”I don’t want James to find out right now.”

Okay. And I will put to you that, at no point during that conversation did you say anything to your mum to the effect that Alan had raped you - - -? --- That’s incorrect.

- - - or that the sex was not consensual? --- That’s incorrect.

341    One or two questions were then put to Jana about a visit to her general practitioner, Dr James Williams, on 14 January 2019. Jana confirmed that she requested an STD test and then gave this evidence:

And you said to Dr Williams that you were embarrassed about the sexual contact with your step-father? --- I can’t remember exactly the words I used about it.

Certainly. You didn’t say that there was anything non-consensual about it? --- I had my son with me in that consultation.

Yes. Well, I’m putting to you that, in fact, you said you were embarrassed about the sexual contact with your step-father? --- I might have said that I was embarrassed about having to ask for this.

342    Counsel intended to show a document to Jana being a file note made by Dr Williams of the consultation. There was an objection. Limited arguments ensued. The primary judge adjourned for lunch. On resumption, there was tendered without objection a police statement made by Dr Williams on 23 February 2021 and which attached his typed file note, which includes the entry:

Embarrassed to mention sexual contact with stepfather – will be discussing fully with psychiatrist in a day or two.

request chlamydia screen

343    There were no further questions about what Jana had said to Dr Williams. Jana was next questioned about her conversation with Alan at Flaxton Gardens approximately one week after 13 January. She was challenged as to the version set out in her affidavit. She denied that Alan said to her words to the effect that: “The events of 12 and 13 January were a mistake that you were both responsible for”. She further denied that Alan had said that he was: “Sorry for his part in that mistake” and “That it should never have happened and that you had both made a bad choice”. She denied that Alan said he would be willing to talk to a counsellor if she considered that would help. She also denied that Alan had said that he would be: “Okay to tell James”.

344    Jana was questioned about whether she had agreed to hold her wedding at Flaxton Gardens, which evidence I have addressed above. The balance of the cross-examination was taken up with questions relevant to the claim for compensation which, for the present, may be put to one side.

345    In re-examination, Jana was questioned as to why, when speaking with Mariana on 14 January she had not used the word “rape”. As explained in Jana’s evidence set out at [204], she refrained from using the word “rape” because of its shameful connotation.

346    It is of course necessary to make findings about the truthfulness of Jana’s evidence. Before doing so, I assess the evidence of the other witnesses, apart from Alan.

Sam Kruger

347    I have addressed part of Sam’s evidence - her encounter with her sister at 4.30 am on 13 January - in my analysis of some of the appeal grounds. I find that evidence to be truthful and compelling. Her evidence was not exposed as false in cross-examination and is considerably assisted by her contemporaneous Tumblr post. The post manifests authenticity from the raw emotion of Sam: commencing “It breaks my heart”, and her angry reaction to what her distressed sister had told her: “Alan had sex with me” and “she said no & told him to stop”. The suggestion in cross-examination that the post was edited at a later date was firmly rejected by Sam and I accept her evidence. It follows that I find the Tumblr post to be an accurate record of what Jana said to her sister from 4:30 am on 13 January.

348    I also accept Sam’s oral evidence as to the state of distress of Jana and as to her recollection of the conversation.

349    There is other important evidence that Sam gave concerning the meeting on the evening of 13 January with her mother and sister. In her affidavit she said that at approximately midday on 13 January, Jana told her that she could not continue working at Flaxton Gardens. Her evidence continued:

Jana and I spoke about telling our mother what Alan had done, and I agreed that I would arrange for our mother and I to come over to Jana’s house that night so that we could tell her together.

In the late afternoon, my mother and I drove separately to Jana and James’ house together.

James went out of the room with their son, Hugo.

Jana then told my mother words to the effect of, “Alan had sex with me last night”.

I could see my mother was shocked. She did not seem to believe Jana.

Jana then told my mother what happened, that Alan had taken her up to the Bridal Suite.

My mother said to Jana words to the effect that Alan would never do something like that.

Jana was clear to my mother that she had not and would never consent to having sex with Alan.

My mother still did not seem to believe Jana, so Jana said words to the effect that if she wanted proof, her tampon might still be in the bathroom in the Bridal Suite.

My mother made it clear that she did not want to speak about the rape ever again. The three of us agreed that we would not speak to anyone else about it until we knew how to do (sic) with it ourselves first. My mother expressed being unsure of what to do, and how to best handle the information.

Jana and I told our mother that she should leave Alan because he was not a good person.

350    In cross-examination, Sam was first questioned about her police statement made on 18 June 2020, which became an exhibit in the proceeding. In that statement, her evidence about the discussion with her mother and sister differed from the account in her affidavit. Relevantly, she said:

Mum then came to Jana’s house. We sat mum down at the living room table and Jana told her what happened. Mum was shocked and seemed to not know how to process it. Mum started asking Jana questions (mum asked Jana if Alan was circumcised and she also asked how he had kissed her).

This did not seem to help the situation at all. It seemed like mum was trying to make sure that this wasn’t something that was fabricated. However, with every response that Jana gave it seemed like mum could tell that Jana wasn’t lying.

After speaking together about this. At the end, we sort of made a pact to never talk about it. I remember having a conversation with Jana and mum (Jana did not know how to deal with this and mum felt betrayed by two people that she loves). I know mum was also worried about the future of the business and her financial future.

351    Notably, there is no reference in the statement to Jana telling her mother that she did not consent to having sex with Alan.

352    The cross-examination initially focused heavily on the earlier discussion between Sam and Jana at 4:30 am on 13 January 2019, which I have addressed above. The questions then turned to the meeting with their mother on 13 January. Sam accepted that she did not mention any absence of consent in her police statement, nor did she during meetings that she had with the Crown prosecutors before giving evidence in the District Court trial. That evidence was not further explored. Rather, the questions then turned to the Tumblr post.

353    Sam’s evidence differs in one material respect to that of Mariana. To Mariana’s recollection, Jana did not say that the sex was without her consent. Jana in her evidence maintained that she told her mother that she had not consented, though she did not use the word rape. Apart from that difference, I regard Sam as having given truthful evidence to the best of her ability from actual recollection (noting that apart from the suggestion that she edited the Tumblr post, no allegation of general untruthfulness was made in the course of her cross-examination).

James Lindsay

354    James made an affidavit on 29 August 2023, which he adopted as his evidence-in-chief. The cross-examination was very limited, unproductive and did not challenge any of the substantive evidence of James.

355    In his affidavit, James gave somewhat extensive evidence of his observations about the impact of PTSD on Jana, and how the impacts altered after 13 January 2019. He confirmed that Jana took her medications each day, by naming each and the dosage. He is a registered nurse, at the time was working as a senior nurse consultant and, according to his evidence, he was “very well versed in psychotropic medications” such as those taken by his wife. His evidence extended to conversations in approximately 2013, during which Jana disclosed her childhood sexual abuse. He first met Alan in early 2017. He recalled conversations with Alan about Jana’s mental health and her prescribed medications.

356    He made observations of Jana after 13 January 2019. His evidence was:

Almost immediately after 13 January 2019, I noticed a change in Jana’s behaviour. She seemed more distracted, her sleep deteriorated, she was less affectionate, she began drinking every day, her mood dropped, she did not want to go outside often or do much, and she was less enthusiastic about her family – both her own, and Hugo and I. She increased the regularity of her psychiatrist appointments.

When I asked Jana what was going on, she told me she was “feeling off”.

Jana started working a lot less. She told me about several great modelling jobs that she had been offered but then she gave me excuses about why she could not or should not do them. Sometimes I found out that she had a modelling opportunity, and she just never went to it.

By mid-August 2019, Jana stopped working completely.

357    I have no reason to doubt the truthfulness of his evidence and no allegation of untruthfulness was put to him in cross-examination.

Dr De Leacy

358    I have addressed the evidence of Dr De Leacy above, to the extent relevant to liability. In short, his evidence explains gaps in Jana’s memory, particularly as to the events leading up to her finding herself at the top of the stairs leading to the entrance to the Bridal Suite, in contrast with her relatively clear recollection of what happened therein.

359    Dr De Leacy was obviously an independent witness and gave truthful evidence to the best of his ability.

Ben Connolly

360    In evidence-in-chief, Ben adopted his affidavit made on 8 December 2023, and was not asked any supplementary questions. I have addressed aspects of Ben’s evidence when dealing with the sexualised conduct and alcohol consumption findings made by the primary judge. I have set out parts of Ben’s evidence above from [167]-[172]. Relevantly, Ben gave evidence to the effect that Alan was “tipsy” and in his assessment was someone “who had three or four drinks”. Ben gave other relevant evidence of his observations of Jana and Alan’s interactions (which is set out at [169]) whilst they were seated on the sofa, including evidence to the effect that “there was a sexual element” to the interactions, and that Jana sat on Ben’s lap on one occasion, which made him feel uncomfortable. During the entire course of the conversation, Ben did not form the view that Alan was: “affected by alcohol to an extent that I would be concerned about his ability to function or make decisions.”

361    When cross-examined about that evidence, his attention was drawn to his police statement where, amongst other things, he said: “Alan and Jana were slurring their words”. He then qualified his evidence answering: “towards the end of that – at the end, yes.” He distinguished between his earlier observations of Jana and Alan when they were sitting next to each other on the sofa where, to his observation: “there was no major intoxication”. It will be recalled that when he was questioned about inconsistent evidence in his police statement concerning the state of intoxication of Jana, he could not provide any reason for not mentioning in his affidavit that Jana was “slurring her words and struggling to stand up” by the time he left Flaxton Gardens.

362    Save for that aspect of his evidence, there is no reason to doubt his truthfulness generally; he was an independent witness and his credit was not otherwise impugned in the course of his cross-examination.

Mariana Van Der Westhuizen

363    I have set out aspects of the evidence of Mariana above. As I have noted, Mariana did not voluntarily give evidence and expressed her deep trauma and distress in having to do so.

364    In her affidavit, she said that at least in the early part of the afternoon of 12 January, Alan “seemed to be a bit tipsy, but not drunk”. She did not give evidence that Jana sat in the lap of Ben or Alan. When she met with Jana and Sam on the evening of 13 January, she noted that her daughters were each visibly upset and her evidence then was:

Jana said words to me to the effect that “something happened”. My first thought was that something had happened between Jana and Ben, but then Jana said that she and Alan “slept together and had sex”.

365    When called to give evidence, Mariana adopted her affidavit and was not asked any supplementary questions in evidence-in-chief.

366    Her cross-examination commenced with questions about her police statement dated 7 July 2020 which became Exhibit 13 in the proceeding. In that statement, Mariana said Alan and Jana: “were getting really tipsy after a period of time” which was a reference to when she was dancing with Jana in the winery. She also said that she was woken by Alan approximately 4 am when he entered the bedroom and: “It was obvious that Alan was quite drunk”.

367    As to her discussion with Jana on the evening of 13 January, the statement included this evidence:

On 13 January 2019, early Sunday evening just after the event closed, Jana called me and asked me to pack an overnight bag and come to her house as she wanted to talk to me. I immediately knew something was not right as she has never invited me to sleep over at her house.

I travelled to Jana’s house and when I got there Sam was there as well. James her then boyfriend (now husband) was in their bedroom. Jana and Sam were crying and were very upset.

Jana told me something happened the night before after I went to bed. My first thought was that something happened between Jana and Ben. But Jana told me something (Jana told me that Alan and herself slept together and had sex). I was really shocked. I then discussed this with Jana (I asked Jana if she was sure it was Alan. Jana told me yes. Jana then told me that they went to the apartment via the internal stairs and described what Alan looked like naked). This was the last thing I expected to hear from Jana. I was really shocked.

Jana and I continued to have our conversation (I kept asking if Jana was sure because she had been drunk. Jana said yes and said Alan took out her tampon). I then remember Sam telling me something (Sam said she checked and saw that it was in the bin in the room).

I was very shocked. I did not really know what to think. I remember saying things to Jana (I asked her what she wanted me to do and she kept saying nothing, nobody can ever know and especially James (now her husband) can’t find out). I remember that Jana was shaking and was very upset, as was I.

368    Mariana did not say in that portion of her statement that Jana had told her that she had been raped. In another conversation that occurred in early January 2020, her evidence was that: “Around this time Jana told me that Alan had raped her”.

369    The effect of the cross-examination was to confirm that evidence. It was not put to Mariana that Jana told her on 13 January that she had not consented.

370    I also find that Mariana was a truthful witness who did her best, noting the stress and trauma that the events of this proceeding have caused her to suffer, to give evidence to the best of her recollection and was not a partisan witness.

FINDINGS

371    The determinative issue is whether Jana gave truthful evidence about what occurred between her and Alan from the time Ben left the winery, between 1 and 1:30 am, to when she entered Sam’s bedroom at 4:30 am on 13 January. If she did, it follows that her (now uncontradicted) account must be accepted.

372    In assessing Jana’s credibility, four periods must be considered: (1) her conduct and that of Alan before the departure of Ben; (2) what occurred between her and Alan when they were alone; (3) her conduct from 4.30 am on 13 January to her meeting with Mariana and Sam later that day; and (4) her conduct to the time when she made a complaint to the Queensland Police in June 2020.

373    For the detailed reasons that follow, I conclude that Jana’s account is truthful, I accept it and I find according to her evidence, save for some matters which are not undermining.

374    In what follows, there is an overlap with my findings that none of the matters identified by the primary judge in forming his conclusion that Jana was an unsatisfactory witness are made out.

Conduct before the departure of Ben

375    It is uncontroversial that Jana and Alan consumed alcohol during the Summer Showcase event, and considerably more thereafter. I find in accordance with the evidence of Ben that Jana, to his observation, in the early part of the evening was “a bit tipsy and was in a relaxed bubbly mood”. Conformably with my findings concerning appeal ground 2(a), Jana took her medications before returning to the winery and when she did, she was significantly affected to the extent that she was slurring her words and struggling to stand up by the time Ben departed between 1 and 1:30 am on 13 January.

376    Whilst Mariana was in the winery (and she and Jana were dancing and singing), Jana was in a playful mood consistent with her consumption of alcohol and an intention to enjoy herself. Whilst Jana danced with Mariana in a physical way, touched her mother, ran her fingers through her mother’s hair and placed her legs on her mother’s lap, that conduct is readily explained by Jana’s prior consumption of alcohol. It was playful, not sexualised conduct. Viewed in isolation it does not support a finding that Jana, subsequently, was a willing participant in sexual intercourse with Alan.

377    I also find in accordance with the evidence of Ben that before he departed: Jana on one occasion sat on his lap; once or twice sat on the lap of Alan and while sitting next to Alan leaned her body against his; Jana and Alan snuggled together, Alan placed his arm around her shoulder; and there were occasions when Alan had his hand on Jana’s leg and she had, at least once, placed her hand over his. Those findings are consistent with the nature of the personal relationship that Jana and Alan then enjoyed, and which Jana accepted when cross-examined. That is, they would often engage in drinking sessions and it was not unusual for each to discuss their personal lives. That relationship extended to her disclosing that she had consulted a psychologist, they each shared their experience of childhood sexual abuse and the impacts on their mental health. The conversations extended to the topic of issues that Alan had in his relationship with Mariana. Alan would discuss with Jana the fact that he was unhappy, at least about life in general. Correspondingly, Jana considered Alan as a person she could relate to because of their family relationship and their backgrounds of abuse.

378    However, these findings do not support a conclusion that Jana agreed to have sexual intercourse with her stepfather. A close personal relationship with a family member and being playful and affectionate is a world apart from consensual intercourse. What should not be overlooked is Jana’s evidence that she “trusted Alan completely”. Her behaviour may be explained by her alcohol consumption.

379    At approximately 12:30 am on 13 January, Jana left the winery in the company of Mariana with the intent of walking to the residence. They did not travel that distance together because Mariana diverted to the office. Jana continued to her bedroom where on arrival she consumed her prescribed medication: an important fact that was not challenged in cross-examination. She then went into Sam’s bedroom to retrieve a pillow. When she did, she woke Sam who then observed that her sister was intoxicated. That evidence is consistent with Jana’s evidence that before she left the winery, she felt intoxicated to the extent that when dancing with Mariana each were nearly falling over when twirling around.

380    Having retrieved a pillow, Jana did not retire to bed. She made an unsuccessful attempt to locate her mother in the residence. Why she returned to the winery is controversial. On her evidence she walked to the office, but her mother was not there. She then returned to the winery in search of her. The reason for returning was challenged in cross-examination, though not effectively in my view. It has not been established on the evidence that she did so with the intent of continuing to party. In my view, Jana gave a plausible explanation in the context that she had consumed and was adversely affected by alcohol by that time.

381    Nor am I persuaded that the inability of Jana to precisely account for her movements between leaving the winery with her mother and returning to it alone points to untruthfulness or unreliability in her evidence. The same is so for her inability to precisely account for the timing of her movements when doing so. Much is explained by the effects of alcohol and her medications.

382    When Jana returned to the winery, Ben and Alan were still engaged in conversation. Jana sat down on a couch. From then until her recollection of being at the top of the stairs, her memory of what occurred is incomplete, which she accepted in her affidavit evidence. She accepted in cross-examination that she sat down on a couch with Alan and Ben. She insisted that at times she drifted off to sleep, because of the combined effect of her medications and alcohol. For the reasons I have given, there is no material inconsistency with the evidence that she gave in the District Court trial about being asleep on the couch. Consistently with her cross-examination, she may have gone outside to smoke or vape, but that is not inconsistent with the fact that when seated she was sleepy.

383    Jana accepted in cross-examination that she remembered watching Alan walk Ben out of the winery, which is consistent with the evidence in her affidavit. She also said in her affidavit that she assumed that Alan would then lock up the venue and that each would walk together to the residence, that being something which they did on prior occasions. She remembered Alan re-entering the winery, but from that point she was “extremely affected” by her medication with the result that: “I remember the following events in pieces and fragments”, commencing with “the next thing” being at the top of the stairs. She maintained that evidence in cross-examination.

384    Jana’s evidence as to these matters is plausible, was not exposed as wrong in cross-examination and raises no credibility issue. I accept her account of these events and find accordingly.

Conduct when Jana and Alan were alone

385    Having established that Jana had no memory of any event between the return of Alan to the winery and her position at the top of the stairs, cross-examining counsel then put a number of direct propositions to her as to what occurred between her and Alan when they were at each sitting on a couch in the winery. I have set out the transcript extracts earlier in these reasons. Jana did not recall discussing relationship difficulties. She accepted that Alan discussed his relationship with Mariana, but maintained that this conversation did not occur at that time on the couch. She accepted that she did discuss problems in her relationship with James and conduct, that might be characterised as overbearing, of James’ mother towards her.

386    She thought she received a neck and shoulder massage from Alan, but did not think they were then alone. She denied placing her legs over his whilst on the sofa. She denied he gave her a foot and leg massage. She denied saying to him: “Are you actually intending to create a sexual feeling in that massage, because it feels really good”. She denied the asserted subsequent conversation that Alan was “okay” if she was. She denied that Alan massaged further up her legs and that she said something to the effect: “Are you wanting this to go further, sexually”. She denied that his response was to the effect of: “I am comfortable with it going further if you are”. She denied that there was a discussion about the prospect of going further. She did not recall that Alan disclosed that his relationship with Mariana was “looking pretty bad anyway”. She denied that she was content to proceed so long as James did not find out. She denied that she unzipped her blue denim dress “almost halfway”.

387    Jana’s evidence was that she ascended the stairs for the purpose of extinguishing candles. Her evidence about that was shown in cross-examination to be wrong. However, as I have explained in dealing with the appeal grounds, this error is explicable by the combined effect of the medication and her alcohol consumption and does not undermine her credibility.

388    Jana’s relatively clear recollection of what occurred between her and Alan from when she found herself at the top of the stairs starkly contrasts with her lack of recollection to that point.

389    In her affidavit, she stated that her vision was blurred and she felt disoriented. Alan sat next to her and said words to the effect: “I’m not happy with my life”. Jana did not consider that unusual, it being consistent with discussions which they had frequently engaged in. She does not believe that she responded to that statement. As set out above at [104], on Jana’s account, Alan then expressed his love for her, employing words to the effect: “I’m in love with you. I wish things turned out differently and I could be with you. We’re perfect for each other”, then adding words to the effect: “I want you to be my lover on the side”.

390    Jana was shocked by these statements responding to the effect of: “What! I don’t agree” and “Obviously you don’t mean that”. There was further discussion, which Jana did not elaborate, on, to the effect that he should not be making those statements. Her speech was slurred and she felt “completely disorientated” at that point. She does recollect that Alan then said words to the effect of: “I’ve been thinking about this for a long time”, to which she responded to the effect: “You should be going back to your wife”. On her evidence that did not dissuade Alan: he lent over kissed her on the lips and inserted his tongue into her mouth. In her evidence in the District Court trial, she said that Alan: “kissed me quite aggressively” and “he kissed me, that impressed my face with his mouth”. There was further unwanted kissing initiated by Alan.

391    Jana experienced difficulty in comprehending what was happening. It will be recalled from the evidence I set out at [105] that Jana’s evidence is that at that point: “My body felt very heavy and I could not control my limbs”. There were more expressions of love from Alan: words to the effect of: “I have loved you for a very long time and I have wanted this for years now” and that he wanted Jana as a lover “on the side”. Jana responded to the effect of: “What if you’re wanting a relationship with me, this will make you end up like your stepfather”, to which he replied: “it’s not the same”.

392    This evidence was not directly challenged in cross-examination. Rather, as the transcript extract that I have set out at [319] demonstrates, a forensic choice was made to challenge her evidence propositionally. She denied that there was consensual kissing and caressing at that point, insisting that Alan did so without her consent. She denied that she was asked whether she wanted to go into the apartment and responded that she did. As I set out at [326], Jana was questioned about whether the door to the Bridal Suite was locked. The response was that she had never noticed the door being used and that Alan used a key to open the door. Although it was put to Jana, by reference to a photograph, that she was mistaken about the door having a locking device, she maintained her evidence.

393    Importantly, apart from those propositions Jana’s evidence about what was discussed at the top of the stairs was left unchallenged.

394    Accordingly, save for her reason for proceeding up the stairs, I accept the truthfulness of her account and find according to her evidence. Jana may have been mistaken about there being a lock on the door.

395    I turn to what occurred in the Bridal Suite.

396    In cross-examination there was much focus on how the door to the Bridal Suite was opened, whether there was a lock and if Alan used a key. As noted, a photograph was shown to Jana, apparently to demonstrate that the door did not have a keyhole for a lock, but has not been included in Part C of the Appeal Book. Although Jana accepted upon being shown that photograph that it did not depict a keyhole for a lock, I do not make a finding about that evidence because in cross-examination the objection was resolved on the basis that her counsel would question Alan about that matter and I have not had regard to his evidence for the reasons above. In any event, how entry was effected is peripheral to what occurred therein and once again an explanation is that Jana’s memory was affected by her medications and alcohol consumption.

397    The critical evidence-in-chief which Jana gave in her affidavit as to the next sequence of events was largely challenged in cross-examination by the method of putting to her a series of propositions consistent with the case of Alan, which she denied and her answers were not further pursued. This portion of the transcript is set out above at [334].

398    Jana was, however, directly challenged on the following evidence, which I have earlier set out, but it is important to state the effect of her evidence. She said that Alan unzipped her dress and removed her underpants while she was laying on her back on the bed. She disagreed that her dress could not be removed easily whilst in that position. She maintained her evidence that Alan removed her tampon and placed it into a bin in the ensuite bathroom, despite giving evidence in the District Court trial that she did not know how her tampon came to be in the bin. She frankly acknowledged that inconsistency. She also acknowledged that she had given inconsistent evidence in the District Court trial that, following intercourse with Alan, she went into the ensuite but did not look into the bin. In contrast her evidence-in-chief was that she remembered noticing the tampon in the bin. Once again, she acknowledged the inconsistency.

399    On the issue of whether Jana verbally told Alan that she did not consent, the questions commenced with confirming her evidence that she was “severely affected” by her medication but not to the extent of being unable to speak. The questions went so far as confirming Jana’s evidence that she was able to “think reasonably clearly”, despite the difficulties which she then had of moving her body. She was not directly challenged on her evidence that she said to Alan: “No” or words to the effect of: “I don’t want this”; “This is not what I want” and “No, I don’t want that”. She was challenged about her evidence that following the intercourse, she got up from the bed walked into the ensuite, dressed and then ran back to the residence. She was challenged as to how that could be correct, accepting that she was severely affected by her medication. The answer that she gave, which was the effect of her adrenaline and her determination to remove herself from the Bridal Suite, is entirely plausible.

400    Surprisingly, there was no direct challenge to her evidence that she felt mortified, shocked, frozen and paralysed with fear; she felt completely powerless; that Alan performed oral sex on her and placed at least one finger into her vagina and in response to her protestation said words to the effect of: “I just want to make you feel good”. There was no direct challenge to her further evidence that Alan then moved on top of her and she could feel his erect penis which he then inserted into her vagina; that he placed the entire weight of his body on top of her; that she was too weak and affected by her medication to push him off; that she reached a point of disassociation and just lay there; she then heard him making sounds to the effect that he had finished whereupon he got off her (but she did not know whether he had ejaculated) and after he had concluded he said words to her to the effect of: “Don’t worry about getting pregnant, I’ve had the snip”.

401    What was put by way of challenge to Jana’s evidence was described by counsel as “an alternative version” commencing with the proposition that upon entry to the Bridal Suite, Alan sat down on the bed and Jana stood in front of him, which she denied. I have set out the full extract from the transcript above at [334]-[335]. Once again, Jana directly responded to each proposition with clear succinct answers. In all 15 propositions were put to her, 14 were denied. The only proposition which she accepted was that Alan: “Wasn’t able to continue performing” and apologised for that fact.

402    The cross-examination did not demonstrate that Jana’s account of what occurred in the Bridal Suite was false or omitted any material particular. However, whether her account should be accepted is not limited to a consideration of what occurred therein. For the reasons I have given in addressing appeal ground 2(k), Jana’s state of distress and what she said to Sam from 4:30 am on 13 January is probative of what occurred and is relevant to Jana’s credit.

Conduct from 4.30 am on 13 January 2019

403    I have accepted the evidence of Sam both as to her observation of the state of distress of Jana and her complaint that Alan had sex with Jana without consent.

404    Jana’s evidence of discussing the matter with her sister was less detailed. On her account, she entered the bedroom crying hysterically and with breathing difficulties. She was unable to fully answer her sister’s questions, limiting her responses to: “Something had happened”; “Alan had sex with me” and “It just happened”. Notably, on that evidence she did not say anything about her lack of consent.

405    Jana was not cross-examined on that evidence.

406    That Jana did not give evidence that she told her sister that the sex was without consent, does not detract from the force of the evidence of Sam confirmed by her contemporaneous Tumblr post.

407    I am therefore satisfied that Jana in a state of much distress (I find that she was hysterical) made a complaint that she had been raped by Alan shortly after it occurred. This is forceful, though not determinative, probative evidence of the fact that Jana did not consent to intercourse. It is implausible that if consensual intercourse occurred, Jana would present in her sister’s bedroom at 4.30 am in a state of severe distress and relate what had occurred in the Bridal Suite. None of that is consistent with a consensual affair.

408    Further, my acceptance of Sam’s evidence strongly supports an overall conclusion that Jana gave truthful evidence as to what occurred within the Bridal Suite.

409    There is then the meeting with Mariana on the evening of 13 January. There is no dispute on the evidence that Jana and Sam arranged for the meeting so that Mariana would be informed of what occurred. Nor is there a dispute that when they met, Mariana observed that each of her daughters was visibly upset, Jana said words to the effect that: “Something happened” and that she and Alan: “Slept together and had sex”. The difference in the evidence is that according to Jana, although she did not use the word “rape”, which she found confronting, in response to her mother stating: “He would never do that”, she responded to the effect: “I would never consent”.

410    Sam’s affidavit evidence corroborates Jana. According to her, the response to her mother’s proposition that Alan “would never do something like that” was: “Jana was clear to my mother that she had not and would never consent to having sex with Alan”. In contrast, as exposed in cross-examination, Sam in her police statement did not mention that her sister told her mother that the sex was without her consent.

411    I am not able to resolve this inconsistency based on my review of the documentary record in Part C of the Appeal Book. This is quintessentially a matter for resolution with the benefit of seeing and hearing the witnesses give their evidence. In consequence, my finding is only that Jana was visibly distressed when she met Mariana to advise her that she and Alan had sexual intercourse. It does not follow, however, that this finding is of limited value for the reason that I have given above: it is implausible that if Jana had engaged in surreptitious consensual sexual intercourse with her stepfather, that she would have, a little more than 12 hours after the event, then in a state of considerable distress have reported that fact to her mother in the knowledge that it would likely lead to the end of her mother’s marriage and she would then suffer the opprobrium of intercourse with her mother’s husband and the personal shame of doing so. None of that is plausible. This conversation corroborates the truthfulness of Jana’s account.

412    Jana gave other consistent evidence about what she did on 13 January, which was not challenged in cross-examination. On her walk from the Bridal Suite to the residence she was shaking and crying, an emotional reaction consistent with the trauma of rape. On entering the residence, she went into the bathroom where she “felt really scared”, changed into her sleeping attire and “washed my face, trying to clean around my mouth where he had kissed it”. That emotion and conduct is not consistent with a consensual sexual encounter.

413    Alan then entered the residence and in a whispering voice enquired: “Where are you”. Jana did not respond. She tried to hide behind the bathroom door and was shaking. That evidence was simply confirmed in cross-examination and is not consistent with a consensual sexual encounter.

414    A short while later Jana exited the bathroom, believing that Alan had gone to bed. He had not. He confronted her with the words: “Here you are”, to which she responded: “Yep” and kept walking towards her bedroom. In answer to his question: “are you all right” she responded “Yep” because she did not wish to converse with him. On her account she just wanted to get away from him. He then offered to tuck her into bed to which she responded: “No”, went into her bedroom and closed the door. She knelt down between two beds in the room and cried in the dark. Jana was challenged in cross-examination on this evidence. She did not recall whether Alan asked her whether she was alright though firmly maintained her evidence that he offered to tuck her into bed. There is no reason to reject her evidence about those denials.

415    Jana was not challenged on her evidence that having returned to her bedroom, she began to have suicidal thoughts flowing from her reflection on her thought processes of: “This is my mum’s husband and he believed there was nothing wrong with professing his love for me”; “After all my progress and healing, how am I possibly supposed to do it all over again” and “I also thought about how he has children, and I have a partner and a child and my life was happy”. It is implausible that Jana experienced suicidal ideation, the result of a surreptitious consensual sexual encounter with her stepfather.

416    Jana woke at approximately 11 am on 13 January. She had a brief conversation with Sam, readied herself for work and walked over to the office to continue for a second Summer Showcase event. Upon her arrival at the office, she encountered Alan where, to her observation he was: “Sitting at his desk with a smug look on his face” and said to her words to the effect: “Morning Gorgeous”. That greeting made her feel sick and she went outside in an attempt to find her mother. She only worked for approximately two hours on that day because: “I was too upset and could not keep working”. She left Flaxton Gardens. Alan attempted to telephone her, but she did not answer. He sent text messages including: “Can we talk”, to which she did not respond. None of that was challenged in cross-examination. It is not consistent with Jana having consented to intercourse.

417    Whilst one may question why Jana returned to Flaxton Gardens knowing that it was likely that she would encounter Alan shortly after they had non-consensual sex, the failure to explore this in cross-examination does not open for inquiry why she acted in this way. In any event, balanced against that matter is her unchallenged evidence that she felt sick when Alan greeted her and was too upset to continue working at Flaxton Gardens that day.

418    Next there is the discussion between Jana and Alan before she left Flaxton Gardens on 19 January, and in response to Mariana telling her that they: “Needed to sort your shit out” and that Alan was waiting to speak with her. Jana’s evidence was that she walked over and spoke with Alan who said words to the effect of: “Well this is tough. Honestly, I was disappointed when you told your mum. We could have had something between us” to which she responded to the effect: “She deserved to know. What did you tell her?” and he in turn replied to the effect of: “Obviously I had to play the I don’t remember the card”. Jana then told Alan she was not going back to work. She was not cross-examined on this evidence.

419    This evidence is inconsistent with Jana having agreed to consensual sex with her stepfather.

420    Considered overall, I find that Jana’s conduct on 13 January, to be consistent with the truthfulness of her evidence of what occurred in the Bridal Suite.

Conduct to June 2020

421    The primary judge made much of the decision of Jana and James to hold their wedding at Flaxton Gardens. I have explained why this is not a matter that undermines Jana’s credibility.

422    There is other unchallenged evidence that is supportive of Jana’s credit, because it is logically inconsistent with a consensual sexual encounter.

423    In April 2019, Mariana persuaded Jana to stop working from home and resume working at Flaxton Gardens, which she agreed to do but on the condition that she would never be left alone with Alan. After she recommenced working, she had a conversation with Mariana who enquired as to her well-being to which she answered: “Not good” and that she had been prescribed antipsychotic medication. Later, in approximately January 2020, she had a telephone discussion with Mariana during which she reaffirmed that the intercourse was without consent and during it she first used the word rape to her mother. Mariana became very upset and the conversation was heated.

424    In September 2019, Jana ceased working at Flaxton Gardens. She gave as one of her reasons her inability to be in the same room as Alan and his repeated greetings to her: “Hello Gorgeous”.

425    Jana gave unchallenged evidence that she did not inform her general practitioner, Dr Williams, that she had been raped during her consultation on 14 January because her child was present with her. She also gave evidence to the effect that for a long time she was unable to use the word rape when discussing her intercourse with Alan.

426    Sam gave unchallenged evidence that after 13 January, her sister: “Was unable to cope with small everyday stressors and would completely shut down emotionally”.

427    James gave unchallenged evidence that “almost immediately” after 13 January 2019, he noticed changes in Jana’s behaviour, which evidence I have set out above.

428    All of this evidence, which I accept, is consistent with non-consensual sex with her stepfather.

Sexual Harassment is made out

429    It follows that Jana has made out the following pleaded contentions in her case.

430    On 12 or 13 January 2019, whilst seated with Alan at the top of the stairs leading to the Bridal Suite at Flaxton Gardens, Alan said to Jana words to the 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 Jana 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 Jana “on the side”.

431    That whilst seated at the top of the stairs, Alan kissed Jana on the mouth without her consent.

432    That whilst in the Bridal Suite, Alan:

(a)    sat down on the bed next to Jana and said words to the effect: “I want to go further with this” before closing and locking the door;

(b)    kissed Jana on the mouth without her consent;

(c)    removed Jana’s clothing including her underwear without her consent;

(d)    removed Jana’s tampon from her vagina without her consent;

(e)    engaged in oral sex and digital penetration of her vagina without consent; and

(f)    had sexual intercourse with Jana without consent.

433    At approximately 4 am on 13 January 2019 at the residence Alan said to Jana words to the effect: “I want to tuck you in”.

434    On the morning of 13 January 2019, at Flaxton Gardens Alan said to Jana words to the effect: “Morning gorgeous”.

435    On or about 19 January 2019, Alan said to Jana words to the effect: “honestly, I was disappointed when you told your mum. We could have had something between us”.

436    Section 28A of the SDA defined sexual harassment as follows:

Meaning of sexual harassment

(1)    For the purposes of this Division, 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.

437    There can be no doubt that, having regard to their family relationship as stepfather and stepdaughter and because Jana did not engage in conduct which invited any of the statements made by Alan to her and did not consent to being kissed by him, his performance of oral sex on her, his digital penetration of her vagina or the act of sexual intercourse, Alan engaged in sexual harassment within the meaning of this provision.

438    It further follows that Alan engaged in unlawful sexual harassment contrary to s 28B(6) of the SDA, which provided:

(6)    It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of either or both of those persons.

439    Where subsection (7) provided:

In this section:

place includes a ship, aircraft or vehicle.

workplace means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.

workplace participant means any of the following:

(a)    an employer or employee;

(b)    a commission agent or contract worker;

(c)    a partner in a partnership.

440    Jana in her amended notice of appeal seeks relief as follows:

(1)    The Order dismissing the Originating Application be set aside and the following orders are made:

(f)    A declaration that Alan contravened s 28B of the SDA in respect of each of the established contraventions.

(g)    A declaration that, by reason of s 106(1) of the SDA, Flaxton Gardens Pty Ltd contravened s 28B of the SDA in respect of each of the established conventions.

(h)    An order pursuant to s 46PO of the Commission Act that the Alan and Flaxton Gardens Pty Ltd pay compensation in the amount of $300,000 in general damages.

(2)    An order that Alan and Flaxton Gardens Pty Ltd pay the costs of the proceeding and the appeal.

441    Something first needs to be said about the vicarious liability of Flaxton Gardens Pty Ltd, which it did not admit on the pleadings due to the denial that Alan had contravened the SDA. Section 106 of the SDA provided:

Vicarious liability etc.

(1)        Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

(a)    an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or

(b)    an act that is unlawful under Division 3 of Part II;

this Act applies in relation to that person as if that person had also done the act.

(2)    Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

442    It was admitted on the pleadings by Alan and Flaxton Gardens Pty Ltd that Alan was a director of Flaxton Gardens Pty Ltd and is and was its agent. Flaxton Gardens is therefore vicariously liable for sexual harassment committed by Alan, when committed in connection with his duties as an agent provided that the exception in s 106(2) does not apply. The critical phrase ‘in connection with’ has been construed broadly: South Pacific Resort Hotels Pty Ltd v Trainor [2005] FCAFC 130; (2005) 144 FCR 402. As explained by Black CJ and Tamberlin J in that case at [42] it is wider than the familiar common law or workers compensation phrase “in the course of”. As that case illustrates it is a fact sensitive inquiry. The Court dismissed an appeal from a decision of a Federal Magistrate who held the employer liable for the conduct of an employee after work hours within a staff accommodation facility at a hotel complex on Norfolk Island. A male employee without consent twice entered the accommodation of a fellow female employee. On each occasion he made sexual advances to her.

443    Amongst other reasons for dismissing the appeal, their Honours reasoned that the conduct was between two employees, at the premises of the employer and in accommodation provided by the employer for work purposes: [39]-[40]. It “could not be said here that the common employment was unrelated or merely incidental to the sexual harassment”: [39]. Although another reason for the conclusion was a prohibition on staff entertaining visitors in the staff accommodation, prohibitions of that kind are clearly unnecessary to engage vicarious liability pursuant to s 106.

444    Similarly, Kiefel J also concluded that the provision is to be broadly construed: [70]. In part her Honour reached that conclusion by reference to the statutory objects, to eliminate as far as possible discrimination in areas of work ([62]) and the positive duty on employers to take steps to eliminate such conduct from the workplace: [63].

445    In this case the conduct occurred within the workplace, following a work function perpetuated by a director of the employer who took advantage of a vulnerable workplace participant. The workplace was the venue for the conduct. The Bridal Suite provided the private and well-appointed area to engage in the conduct. The employer’s alcohol was used to, in part, make Jana vulnerable and, ultimately, incapable of resisting Alan’s desires. Alan took advantage of the employment to engage in his conduct: cf Weir v Telstra Limited [2023] FCAFC 196; (2023) 301 FCR 261 at [112].

446    Once those matters are properly considered, I am well satisfied that all of the impugned conduct of Alan occurred in his capacity as an agent of Flaxton Gardens Pty Ltd.

447    Section 46PO of the Commission Act provides a mechanism for the grant of relief where unlawful discrimination is established, including acts, omissions or practices that are unlawful under Part II of the SDA, if certain requirements are met. They are in this case. That is, Jana made a complaint to the President on 11 February 2022, alleging unlawful discrimination contrary to the SDA, which complaint was terminated pursuant to s 46PH by notice dated 12 October 2022. On termination, Jana was entitled to make an application to the Circuit Court alleging unlawful discrimination by Alan and Flaxton Gardens Pty Ltd. The unlawful discrimination that she alleged in her proceeding before the Circuit Court was the same as the unlawful discrimination the subject of the terminated complaint and arose out of the same acts.

448    Those conditions having been met, s 46PO(4) conferred power to make a range of orders:

(4)        If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a)    an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b)    an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c)    an order requiring a respondent to employ or re - employ an applicant;

(d)    an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e)    an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f)    an order declaring that it would be inappropriate for any further action to be taken in the matter.

Note 1: The Federal Court, or a judge of that court, may award costs in proceedings under this section in certain circumstances--see section 43 of the Federal Court of Australia Act 1976 .

Note 2: The Federal Circuit and Family Court of Australia (Division 2), or a Judge of that Court, may award costs in proceedings under this section in certain circumstances--see section 214 of the Federal Circuit and Family Court of Australia Act 2021 .

449    In my view, it is appropriate that declaratory relief be granted as sought. Although the power to grant such relief is discretionary, this is a case justifying it as publicly vindicating Jana’s claims and to express disapproval of the sexual harassment she suffered: Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730 at [6], Nicholson J; Shizas v Commissioner of Police (Obh of Commonwealth) [2017] FCA 61; (2017) 268 IR 71 at [191], Katzmann J.

450    In the Circuit Court Jana claimed general damages, loss of past and future income and medical expenses. Before us her only claim is compensation for general damages. The statutory basis for an award of compensation requires identification of loss or damage suffered because of the unlawful discrimination. This allows for an assessment of compensation by reference to principles analogous to an award of damages for tortious conduct, but is not constrained by those principles: Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334 at [27], [30]; Kenny J and [126]; Besanko and Perram JJ.

451    As is well understood, in tort an award of general damages is to compensate for injury by reference to pain, suffering, loss of amenity, diminution in quality of life and discomfort (amongst others). Jana’s evidence is that Alan’s conduct caused her physical and psychological damage. The statutory object is to provide for fair and adequate compensation for the injury she suffered because of the unlawful discrimination. The statutory purpose of the SDA may “inform the proper approach to causation”: Richardson at [130], Besanko and Perram JJ. Community standards inform the assessment: Richardson at [95], Kenny J; Taylor v August and Pemberton Pty Ltd [2023] FCA 1313; (2023) 328 IR 1 at [501]-[505], Katzmann J. However, as Katzmann J explained in Taylor at [520]:

The purpose of damages is to compensate the applicant for the harm caused to her by the sexual harassment she suffered, not to reflect the community’s appreciation of the extent of harm that can be occasioned by sexual harassment.

452    Jana gave unchallenged evidence-in-chief as follows. Between the ages of four and seven she was subjected to sexual abuse by the husband of her mother’s sister. She first revealed the abuse to James in 2013 and confronted the psychological impact of the abuse which had afflicted her for years. She became depressed and withdrawn. James recommended that she seek medical advice. She commenced visiting the psychiatrist, Dr Martin. As noted, he diagnosed her with PTSD, anxiety disorder and depressed mood symptoms. When she first consulted Dr Martin, Jana described her condition as: “I experienced really bad PTSD symptoms for about six months. I felt like I was losing my mind.”

453    Dr Martin commenced a form of prescribed medication. After approximately eight months of treatment, Jana considered that her PTSD symptoms had lessened. She continued however to take her prescribed medication.

454    She commenced working as a model when she was 16 years of age. In 2013 she was working at least once per week and moved to Sydney to pursue further opportunities. In her words she had “a mental breakdown” towards the end of 2013 and returned to live in Queensland. She continued modelling until November 2015 when she gave birth to her son Hugo. She was able to work “consistently” until January 2019.

455    During intercourse, Jana relived the trauma of her childhood sexual abuse. When she returned to the residence she was distressed: shaking and crying. In her darkened bedroom she knelt down between the twin beds and cried. She had profoundly disturbing thoughts, including suicidal ideation. She presented hysterically to her sister.

456    In January 2019, Jana resumed sessions with Dr Martin because, in her view, Alan’s conduct “had a very significant impact on me”. Dr Martin increased the dosage of her medications. Since 2020, her evidence is that the symptoms “have gradually improved, but the assault continues to have a significant impact on me in the way I live my life”. She gives as examples: “I have a lack of trust and now wary”; “I feel a sense of shame”; “I have intrusive memories about the incident”; “I still have PTSD, and symptoms of anxiety and depression”; “I find it hard to cope with stress and finding it heightened now that my son has developed type I diabetes”; “I continuously have flashbacks to the evening and find it hard not to think about it”; “My sleep is erratic and disturbed”; “My concentration and short-term memory are poor”, “My social life is decreased as a result of my anxiety” and “I am currently taking medication Sertraline, which is an anti-depressant”.

457    Jana’s evidence is that the conduct had a “profound impact” on her relationship with James. It caused her “a massive amount of pain” and “a huge amount of emotional damage”. As to her employment prospects, the evidence is that the health impacts of the conduct have severely limited her employment prospects. She gives evidence about her past earnings, but as no past or future economic loss claim is made, I do not undertake an assessment by reference to that evidence. What is relevant is that the conduct of Alan has adversely affected her ability to derive enjoyment in life through undertaking useful and continuous employment in her modelling career. The final sentence in her affidavit reads:

I believe my low confidence, low moods, difficulty coping with stress and my poor concentration and memory would make it very difficult for me to work consistently.

458    James also gave unchallenged evidence as to the impact of the conduct on Jana. To his observation, “almost immediately”, there was a noticeable change in her behaviour. She was more distracted, her sleep was disturbed, she was less affectionate and she began drinking heavily. She undertook less work. Prior to January 2019, he observed Jana: “To be moving to a place emotionally where her trauma and vulnerabilities were managed so that she could function, and she did not see the world as an inherently scary place”. But since, to his observation: “The incident caused years of progress in her mental health to be brought back to square one… The incident appears to have reinforced all of Jana’s insecurities and rattled her confidence. She is more fragile now than she was before”.

459    I have already set out her state of distress that Sam observed from 4:30 am on 13 January. When addressing her observations of the impact of the conduct, Sam’s unchallenged evidence included:

After the event, Jana was unable to cope with small everyday stressors and would completely shut down emotionally….

Jana became very distant from my mother and Alan.

460    Dr De Leacy in his report of 12 April 2023, about which there was very limited cross-examination, recorded her history as including:

She has developed a lack of trust. She is very wary now. She has intrusive memories about what happened. She has a sense of shame. She has anxiety and depression. She finds it hard to cope with stress and she commented that there is an additional stressor now that her young son has developed type I diabetes and requires extra care.

She has flashbacks to the evening and she cannot stop thinking about it.

Her sleep is erratic.

Her appetite is dropped that she has maintained a fairly stable weight.

Concentration and short-term memory are poor.

Her social life has dropped because of her anxiety.

461    Dr De Leacy opined that her current condition is an aggravation of her pre-existing condition, caused by the conduct of Alan. Previously, she suffered from Complex PTSD from childhood sexual abuse, which had been treated. In more detail, he expressed his opinion as:

She can be diagnosed as suffering from Complex Post-Traumatic Stress Disorder, the current situation being aggravation of pre-existing Complex Post-Traumatic Stress Disorder. The pre-existing condition was well under control but there has been a significant recrudescence of symptomology since the events that have been described above occurred.

She has a wide range of symptoms, with anxiety, depression, flashbacks, rumination, a sense of mistrust, sleep disturbance, appetite variability, withdrawal socially, and she has had a falling out with her mother. Concentration on short-term memory are poor.

462    Dr De Leacy opined that Jana’s diagnosis meets the criteria of DSM-5. When asked to express an opinion about her prognosis, he stated that the symptoms: “Will require intensive treatment to resolve”, comprising regular visits to a psychiatrist as well as counselling from a psychologist and long-term medication. The symptoms: “May not entirely resolve but will fade over the course of one to two years.”

463    In a very brief cross-examination, Dr De Leacy confirmed that Jana’s prior existing PTSD was controlled by Jana’s prescribed medication, that a possible stressor may be isolation from her family, including moving to another state and that, in time, she may be able to return to some form of part-time employment.

464    I find that the conduct did and continued to have each of those impacts on Jana.

465    In the course of argument, the Court was taken to a number of decisions concerned with the quantum of awards for general damages said to have been made in comparable cases.

466    It was put by counsel for Jana that awards in sexual harassment cases have not maintained parity with awards of general damages in personal injury and defamation cases. It was submitted that the award in Richardson of $100,000 in 2014, does not now reflect significant alterations in community attitudes to sexual harassment in more recent times. As a particular example, reliance is placed on the award in Taylor of $180,000 in 2023 for sexual harassment and victimisation.

467    I have not been greatly assisted by considering quantum awards in other cases. Necessarily each turns on their own facts: Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 at 124-125, Barwick CJ, Kitto and Menzies JJ. Although that decision has been criticised and overtaken in some jurisdictions by legislation (as to which, see Luntz H and Harder S, Assessment of Damages For Personal Injury and Death (5th ed, LexisNexis, 2021) at [3.1.6]-[3.1.8]), in my view, it is the correct approach in assessing compensation pursuant to s 46PO(4) of the Commission Act because the requirement is to compensate for loss or damage suffered by an individual in unique circumstances caused by the contravening conduct. It is also irrelevant to examine awards in defamation cases as explained by Katzmann J in Taylor at [509].

468    I do however, accept the general submission that community attention in more recent years has brought into sharper focus the impact on individuals of sexual harassment, which Katzmann J partly chartered in Taylor at [502]- [505]. For example, in 2022, the Australian Human Rights Commission (AHRC) completed its fifth national survey on workplace sexual harassment: Australian Human Rights Commission, Time for respect: Fifth national survey sexual harassment workplaces (AHRC, Sydney, 2022). The report, among other things, outlines that there has been “an improvement in Australians understandings of the concept of sexual harassment” and that “there is clearly growing support and appetite for change” in Australian workplaces. Further, since the award of damages in Richardson, there has been significant legislative change enacted to provide better protection from sexual harassment in the workplace, including the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth). The Respect at Work Act, among other things, introduced a positive duty on employers to take reasonable and proportionate measures to eliminate sexual harassment, as far as possible: s 47C of the SDA. This amendment is intended to shift the focus to proactively preventing sexual harassment, rather than addressing and responding to conduct that has already occurred: Explanatory Memorandum, Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022.

469    In this matter, the contravening conduct caused Jana to suffer very great distress in the immediate aftermath, the aggravation of her pre-existing Complex PTSD with all of the sequelae described in the lay and expert opinion evidence. The conduct has had a profound adverse impact on her mental health, enjoyment of life and personal, professional and social interaction. It has caused anxiety, a loss of confidence and the considerable shame of being sexually harassed by her stepfather.

470    Having regard to all of the relevant circumstances, I consider an award of general damages in the sum of $230,000 as fair and adequate compensation.

471    As to costs, the broad discretion to award costs pursuant to s 43 of the FCA Act, for the costs of the appeal, is subject to s 46PSA of the Commission Act, which provides:

When respondent liable for costs

(2) Subject to subsection (4), if the applicant is successful in proceedings on one or more grounds, the court must order each respondent against whom the applicant is successful to pay the applicant’s costs.

 (3) The court may order that the costs to be paid by the respondent be assessed on an indemnity basis or otherwise.

 (4) If the court is satisfied that the applicant’s unreasonable act or omission caused the applicant to incur costs, the court is not required to order the respondent to pay the costs incurred as a result of that act or omission.

472    Similarly, the broad discretion to award costs pursuant to s 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), for the costs of the Circuit Court proceeding, does not apply to proceedings in relation to a matter arising under Division 2 of Part IIB of the Commission Act.

473    Accordingly, in each case, costs must follow the event.

Outcome

474    For these reasons, I would allow the appeal, grant declaratory relief generally in accordance with the conduct set out in ground 2 of the amended notice of appeal, award compensation in the amount of $230,000 and order the respondents to pay the costs of the appeal and of the proceeding in the Circuit Court.

Associate:

Dated:    17 October 2025