Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/110

 400 The oral evidence of Ms Higgins was that by the time she left The Dock, she had consumed 11 vodka, lime and sodas or vodka diet cokes (T614.20–33; T617.37–40) (together with Drink 1, being a glass of wine consumed at home, being 12 drinks in total). She said that night she was "drinking for a purpose. I was drinking to get drunk" (T946.33–38). The consumption of her first drink at home was unchallenged, and as would already be evident from my findings, I accept it occurred. Although her behaviour as revealed in the CCTV footage is consistent with someone proposing to get drunk (and succeeding in that effort), my reservations as to Ms Higgins' reliability cause me some hesitation in accepting her uncorroborated testimony as to how much she drank by the time she left The Dock. A far surer guide is the CCTV recording (Ex R42 / Ex 17A).

401 The written submissions made on behalf of Mr Lehrmann assert that the foundation for the assumption Ms Higgins consumed ten drinks at The Dock (and three others elsewhere) "is tenuous". More specifically, he asserts that a close review of MFI 64 (being a 20-minute selection relied upon by Mr Lehrmann taken from the whole of the CCTV footage in evidence and from the cameras operating that night) "suggests Ms Higgins consumed not more than [nine] drinks at [The] Dock" and "no more than [ten] drinks all night".

402 In the end, doing my best from viewing the CCTV footage and the other evidence, I find Ms Higgins had the drinks I have identified, and I do not accept Mr Lehrmann's submissions. But if for some reason I am wrong, and only nine were consumed, I do not think it really matters because it is not possible to be precise as to the full extent of her further consumption, and she continued to "kick on".

Interactions between Mr Lehrmann and Ms Higgins

403 In final submissions, Mr Whybrow contended that if one has regard to the whole of the CCTV footage (Ex R42), rather than selected extracts, it is: "not accurate to say that [Mr] Lehrmann is spending all his time with [Ms] Higgins, keeping an eye on her, plying her with drinks, all of those things that are put as significant credit issues against him" (T2363.25–37; T2361.35). In amplification of this submission, as noted above, the 20-minute selection relied upon by Mr Lehrmann (said fairly not to amount to "a subjective and selective view") (being MFI 64) was played in Court (T2352–3).

404 It is true that Mr Lehrmann was not constantly with Ms Higgins and was not encouraging her to drink earlier in the evening, but it is equally true that his evidence-in-chief that his Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369