616 As to the second, as is already clear, I’m happy Mr Lehrmann knew his account given to the AFP and to his legal representatives at the trial as to why he came again to Parliament House and what he did there was false. First, though she wouldn’t wish to be peremptorily terminated, as her contemporaneous messages reproduced under make clear, she effectively understood she was to be unemployed very soon and had no lengthy-term job security. Would by no means make a high-risk funding. Mr Lehrmann submits that the details and circumstances of this case are archetypal of a ‘Palmanova’ state of affairs – the place no one hypotheses emerges as extra prone to be correct than all of the other prospects thought-about collectively. Whether they’re fanciful or simply unpersuasive, they’re all individually far much less probably eventualities than what I’ve discovered passed off. In any occasion, with out getting into the vulgarities, commonsense suggests the type of sexual exercise I discover passed off wouldn’t essentially lead to a lady’s make-up being smeared all over her face (as the submission implicitly suggests). 604 First, the important corroborative evidence of Ms Anderson is minimised by asserting her observations as to the state of Ms Higgins’ make-up create a issue for the respondents and that although “Ms Higgins was found asleep on the sofa bare”, this could possibly be as a result of “it merely made her feel extra comfortable” or “she determined to take away her gown earlier than she lay down on the couch as she might have wished or tried to avoid vomiting on her costume, after which passed out asleep”.
Although the references to proceeding willy-nilly or having a state of mind of indifference tend to counsel a higher test than a mere failure to consider the issue of consent, because they could counsel a positive frame of mind reasonably than an absence of consideration, I do not consider that there’s a difference of substance if the circumstances are such that there is a potential absence of consent. Ms Anderson’s fleeting observations upon being confronted by the stunning sight of Ms Higgins looking up at her, not in obvious distress but sufficiently unaware of her surroundings to only stir herself to show over into the foetal place like a bare new-born babe, are hardly more likely to have precision as to such a minor matter. 583 Notwithstanding the cautions to which I’ve referred, the total range of different possibilities mixed, and taking all my reservations as to the credibility and reliability of Ms Higgins under consideration, her proof that she was not totally aware of her surroundings but then all of the sudden became conscious of Mr Lehrmann on top of her, at which time he was performing the sexual act, when given orally earlier than me, struck me forcefully as being credible and as having the ring of reality.
Secondly, even if one can point to it being somehow in Ms Higgins’ interests to recommend her work colleague behaved inappropriately in the direction of her, to invent a rape allegation in such circumstances wouldn’t solely be malevolent, however one would expect it be finished by being definitive and clear about the allegation, and not responding to the incident within the traumatic, halting way evident in Ms Higgins’ 2019 actions (according to the actions of a sexual assault victim dealing with trauma); nor thirdly, wouldn’t it clarify her evolving and evidently candid contemporaneous exchanges with these in whom she determined to confide in the strategy of confirming her preliminary instinct to not press her complaint. 574 That argument put to 1 facet; I now flip to the problems with extra substance and proceed to deal with the question of whether or not the respondents have discharged their burden on the stability of probabilities of proving the second aspect (non-consent aspect) after which separately deal with the third aspect (information aspect). 588 This third element additionally involves consideration of mind-set, but this time of Mr Lehrmann.
580 What I’m required to do, in making use of the very fact-finding principles I’ve explained, the facts discovered and agreed, and commonsense, is to evaluate the reliability of Ms Higgins’ evidence as to her mind-set. 594 Much ink has been spilled and significant consideration of law reformers and legislators has been directed in recent times to the issue of what constitutes recklessness as it pertains to the fault factor in sexual offences (though this topic, for causes I’ve defined, was wholly unexplored in the submissions and the parties haven’t engaged with the question as to what recklessness means having regard to the peculiar, contemporary conception of rape). As I’ve defined, there’s a substantive difference between the criminal customary of proof and the civil customary of proof and, as the tribunal of truth, I’ve solely to be fairly satisfied that Mr Lehrmann has acted as I’ve found, and I’m not obliged to reach that degree of certainty necessary to support conviction upon a criminal cost.