Judge cites Lee ruling in Lehrmann defamation case against Network 10 in rejecting lawsuit

Fallout from the Brittany Higgins rape case saga has begun to wash through judicial decision-making in Australia, after a judge handed down a ruling scathing of evidence given by an intoxicated sexual assault complainant.

Former model Jana Kruger.

Fallout from the Brittany Higgins rape case saga has begun to wash through judicial decision-making in Australia, after a Queensland judge handed down a ruling scathing of evidence given by an intoxicated sexual assault complainant.

The approach taken by judge Gregory Egan of the Federal Circuit and Family Court contrasts with that of Justice Michael Lee in the failed defamation action launched by Ms Higgins’ accused attacker, Bruce Lehrmann, and will raise fresh questions for how judges interrogate contested evidence of rape.

Judge Egan cited Justice Lee at length in the 68-page judgment.

In both proceedings, the intoxication of the complainant and delay in going to the police were key to what played out in court.

But unlike the disastrous civil case brought by Mr Lehrmann, who denied having sex with his former workmate during their notorious late-night stop at parliament house in Canberra in 2019, the issue before Judge Egan was consent after 29-year-old model Jana Kruger accused her stepfather of rape.

Alan Stanley Thompson, 54, maintained the encounter was consensual. He had been acquitted of two counts of raping Ms Kruger after a two-day District Court trial in Brisbane in November 2021.

Ms Kruger’s stepfather, chef Alan Thompson. Picture: Tracey Beard

His aggrieved stepdaughter then pursued a civil claim for damages for alleged sexual harassment and discrimination in a case that came before Judge Egan.

In the September 13 judgment, he found fault with the evidence given by both parties, but ultimately rejected Ms Kruger’s account that Mr Thompson had raped her while she was affected by alcohol and a cocktail of sleep and antidepressant medications at the family’s popular wedding venue on the Sunshine Coast.

The “tawdry” outcome was that Ms Kruger was most likely a willing participant in what happened in the centre’s bridal suite on a January night in 2019, Judge Egan ruled.

He said a court should not prefer the account of one “unsatisfactory witness” over another unless this was supported by a “compelling reason” such as video, documentary or eyewitness evidence.

“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,” he said.

“A court ought not to invoke outdated historical or moral preconceptions for the purpose of making positive findings about what probably next occurred. That is particularly so where the consequences of making a finding of sexual misconduct are grave.

“Nor should a court be persuaded that one version of events given by one unsatisfactory witness should be preferred over another version of events given by another unsatisfactory witness unless there is a compelling reason to do so, namely because one version was clearly the more probable version.

“Compelling reasons might arise based on relevant CCTV evidence, documentary evidence or the evidence of eyewitnesses. There was no such evidence of relevance in this trial.”

Ms Kruger’s solicitor said she would appeal the decision next week. “We are proud to stand with her,” said Patrick Turner, of Maurice Blackburn Lawyers.

Brittany Higgins. Picture: NewsWire / Jeremy Piper

Bruce Lehrmann. Picture: NewsWire / John Gass

Ahead of going to trial before Judge Egan, Ms Kruger told this masthead in 2022 she felt let down by the criminal justice system when Mr Thompson was acquitted of rape. Her statement of claim in the Federal Circuit and Family Court detailed her inability to work, mental health conditions and humiliation arising from the disputed encounter with her stepfather, a top-flight chef who had owned fashionable eateries in Britain before he went into business with Ms Kruger’s mother, Mariana, whom he married in 2017.

They had been drinking with other family members and employees on the night Mr Thompson and Jana Kruger had sex at the Flaxton Gardens reception centre, where Ms Kruger had been taking photographs for a networking event. The young woman said Mr Thompson had professed his love for her and asked that she become his “lover on the side”.

She said she had by then taken her nightly dose of Zoloft, diazepam, melatonin and Stilnox, telling him: “I just want to go to sleep.” Instead, Mr Thompson guided her into the bridal suite. By her account, she twice said: “I don’t want this.”

He said she removed her dress and underwear and when he asked, “do you want this?”, Ms Kruger responded with words to the effect, “yes”, and “I need this”.

Judge Egan said aspects of her evidence were implausible, unsatisfactory, vague and confusing while Mr Thompson was a visibly unsettled and anxious witness whose evidence was in “many respects unsatisfactory”.

But the court accepted in all respects the evidence of photographer Benjamin Connolly, who had been discomfited by the “sexual element” to the interaction between Ms Kruger and Mr Thompson earlier in the evening, when she was seen sitting on her stepfather’s lap.

“As tawdry as it is, the court further funds that Kruger was most likely a willing participant in her entry into the bridal suite … such entry being consistent with both of them having accelerated to a higher level the already sexualised tensions between them that made Connolly feel so uncomfortable,” Judge Egan found.

“The court does not find that anything which occurred between Kruger and Thompson up until the time that they each entered the bridal suite was considered unwelcome by Kruger.”

Judge Egan cited Justice Lee’s Lehrmann decision extensively in canvassing the burden of proof and standard of proof he should rely on. In a civil case, the standard of proof is the balance of probabilities – a lower threshold than the higher bar of beyond reasonable doubt set for criminal prosecutions.

In dismissing Mr Lehrmann’s defamation case against Network 10 and presenter Lisa Wilkinson in April, Justice Lee found that the former ministerial adviser had on the balance of probabilities raped Ms Higgins at Parliament House after plying her with liquor during a night out in Canberra in March 2019. Justice Lee said this required establishing that sex happened, that a party did not consent, and that the other had knowledge of that lack of consent.

The earlier criminal trial of Mr Lehrmann for rape – which he emphatically denied – collapsed over juror misconduct in 2022 while a Western Australian Supeme Court judge’s decision is pending in a separate defamation case brought by their former boss, one-time defence minister Linda Reynolds, against Ms Higgins.

Justice Lee assessed separately the rape and ancillary allegations by Ms Higgins and her now-husband, David Sharaz, of a political cover-up by the then Coalition government under Scott Morrison. He found the rape allegations proven, the cover-up not.

While both Mr Lehrmann and Ms Higgins were held to be unsatisfactory witnesses, Justice Lee found her evidence concerning the rape believable. “To remark that Mr Lehrmann is a poor witness is an exercise in understatement,” the senior Federal Court judge said. “His attachment to the truth was a tenuous one.”

Potentially importantly for future rape and sexual assault cases, Justice Lee found the “general thread” of Ms Higgins’s evidence about the rape was consistent with the actions and attempted memory corrections of a traumatised person, even though some of her recollections had been wrong and behaviour contradictory.

Judge Egan said Ms Kruger had initially confessed to her mother, Mariana, that she had had consensual sex with Mr Thompson, only to say a year later it was rape. “I couldn’t believe what I was hearing,” Mariana said.

But Judge Egan said he found it “implausible and bizarre” that Ms Kruger would have agreed to hold her own wedding at Flaxton Gardens in December 2019 – 11 months after the encounter with her stepfather – had “in fact she been raped by Thompson at that very venue”.

Mr Thompson and Mariana had since separated, Judge Egan noted. In 2022, Ms Kruger said her life had been up-ended, prompting her to move to Tasmania and “off the modelling radar”.