Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/131

 reason waiting for a person who had wandered off (unless, of course, it was to grab the whisky and some glasses, a task which would have taken no time at all).

493 Thirdly, and in a quite different category, is a subtle tension between Ms Higgins' various accounts of the assault. As I said at the commencement of these reasons, the surest guide to what went on are the probabilities arising from the logic of events, the testimony of independent and honest witnesses, and contemporaneous and apparently candid representations. Falling within the last two of these categories, is the evidence of two assertions made by Ms Higgins, being a representation:


 * (1) made only three days after the incident, and immediately after Mr Payne had asked "Did he rape you?", being her immediate and spontaneous response: "I could not have consented. It would have been like f**king a log" (T1422.39–43);


 * (2) with her ex-boyfriend (noted in above Section F.7), again just days after the incident, where in response to his direct question "Did you hook up in there or did someone take advantage of you?", Ms Higgins replied: "Yeah, it was just Bruce and I from what I recall. I was barely lucid. I really don't feel like it was consensual at all" (Ex R99 (at 695)).

494 These representations, which suggest she was passive and hence incapable of consenting, reflect an interaction somewhat different from one where Ms Higgins had repeatedly, and unequivocally, said "no on a loop". This must be qualified by noting that consistently with the notion of passivity, there was alleged immobility, in that she also said at trial (as I have reproduced in context above), that she: "couldn't scream for some reason… it was just, like, trapped in my throat; I couldn't do it. I know I felt really, like, waterlogged and heavy and I couldn't – I couldn't move"; and later: "I couldn't, like, scream like you see in, like, the horror movies, like, I couldn't – I don't know. I don't know why I couldn't" (T629).

495 In pointing this out, I am conscious that shortly after the incident, on 1 April 2019, Ms Higgins also told AFP officers that "Bruce had said something about finishing – I said something about "no don't" or "no don't" (Ex R77 (at 4)). As I will explain, however, this was said by Ms Higgins while she was conveying a number of untruths to AFP officers which seemed to paint her actions in what she, at the time, perceived to be a better light and at a time she was not intending to proceed with a criminal complaint.

496 What is one to make of this? Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369