The Full Federal Court had some bristling things to say about FCFC Judge Greg Egan, who already is well known to our readers.
[See Fresh Horrors for remarks at his swearing in and a turnaround time of two-years-and-three months in a migration case.]
Jana Kruger has successfully appealed Egan’s 83-pages of reasons in the case she brought against her stepfather Alan Thompson, alleging sexual intercourse without her consent. Thompson was, at the time, married to Jana’s mother, Mariana.
He had been acquitted of raping Jana in a 2021 Queensland District Court trial. The current proceedings concerned breaches of the Sex Discrimination Act.
Thompson is a former chef and at the time was the manager of a Queensland wedding events venue, Flaxton Gardens in the hinterland of the Sunshine Coast. Jana was a “workplace participant” within the meaning of the Sex Discrimination Act.
On the long night in question (January 12-13, 2019), a networking event at the wedding centre, Jana said Thompson made it clear that he wanted her “on the side”. She was feeling woozy, wanted to go to sleep and told him she did not want to have sex with him.
Alan guided her to the Bridal Suite, where he admits intercourse took place, but claimed it was consensual.
Judge Gregory said he was unable to make any findings one way or the other that the “pleaded conduct was unwelcome”. He didn’t think Kruger was a credible witness, and that she had not discharged the onus of proof.
Craig Colvin, Wendy Abraham and Shaun McElwaine went through the evidence with a fine tooth comb and upheld the key ground of appeal – that Egan did not adequately consider evidence of her medication, prescribed to address issues arising from childhood sexual abuse by a member of her family, combined with her intoxication.
Instead, the trial judge arrived at the conclusion that she was “most likely a willing participant in her entry into the Bridal Suite”.
Yet, there was no challenge to the evidence that Jana was on a cocktail of drugs or that she had been drinking, and the combined effect of both – indeed much of her evidence was unchallenged at the trial.
Intoxication was crucial to the assessment of Ms Kruger’s evidence about her conduct on the night in question.
In their joint judgment, Colvin and Abraham said:
“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.”
Colvin and Abraham further found that Egan had erred in finding Kruger had engaged in “highly sexualised” conduct with Thompson.
This finding set the stage for Egan to conclude that before entering the Bridal Suite, Ms Kruger and Mr Thompson had an “amorous intent”.
Judge Egan drew an adverse inference against the appellant because she didn’t call Dr Martin, her treating doctor at the time – yet he failed to identify the inference that could more readily be drawn.
Jana went on to have her own wedding reception at Flaxton Gardens, which the primary judge said was “implausible and bizarre” if she had been raped by Thompson at the same premises.
However, the judge never cleared up conflicting evidence about this issue, and Mariana’s insistence that her daughter’s wedding be held there.
Colvin and Abraham remitted the case to the Circus Court with another judge to conduct a new trial. Because it is a Brisbane case, it might land in the lap of “pumpkin eating” authority, Sal Vasta.
McElwaine went further and upheld the grounds of appeal relating to contraventions of the Sex Discrimination Act, found it was unnecessary to remit the case for rehearing, awarded compensation of $230,000 and ordered Alan and Flaxton to pay costs of the appeal and of the proceedings below.
He also pointed to other problems with Egan’s thinking:
“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) 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.”
[snip]
“His Honour’s conclusions depend on speculative reasoning and lack of any rational foundation in the evidence.”
McElwaine doesn’t spare the rod:
“… His Honour comprehensively misunderstood the evidence, overlooked important evidence and made findings of fact that were not open.”
In June 2021, The Guardian reported on a raft of the judge’s “dismaying decisions”.
Judge Egan was appointed to the court in the dying moments of the attorney generalship of George (Bookshelves) Brandis “KC”.