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 497 It might have been said to be a possible pointer to a lack of reliability of this aspect of her evidence given at trial, but the point was not relied upon by those acting for Mr Lehrmann, presumably because what commonsense and the agreed facts go some way in explaining is that a tension or inconsistency of this type must not be dealt with superficially and there may be an entirely benign explanation for its existence.

498 If Ms Higgins had been the victim of the assault she recounted, this could simply reflect the lability and frailty of memory following such an event and how someone can come to process trauma and later recount a consolidated memory of a highly distressing incident which has come to dominate her life in recent times. Whatever the truth of what happened, I have little doubt Ms Higgins' current account at trial reflects how I expect she would have wanted to act in such a situation, that is, to demonstrate active and repeated resistance to her assaulter.

499 I will come back to this issue, but before leaving it, it is worth recalling her almost ebullient reaction when told the news by Ms Maiden that Mr Lehrmann denied that any sex took place and, as she said in chief (T703.22):

DR COLLINS: And just explain what was going through your mind as you heard for the first time that Mr Lehrmann's position was that he had not had any sexual contact with you?—-I was really relieved. I thought that, like, we were going to have this very nuanced debate about consent and alcohol and all this kind of stuff, and I was really shocked and kind of happy at the time that he was saying that nothing had happened, because to my mind it was so preposterous …

500 There is, of course, no nuanced debate about consent if a woman repeatedly says no and a man proceeds on regardless. Or, going back to the words Ms Higgins used to Mr Dillaway, there is no need in such circumstances to only "feel like" what happened was not consensual. There is, however, the real possibility of some form of nuanced debate if a woman is barely lucid, she later processes what occurred, and she realises she has been assaulted while initially lacking proper awareness of what was going on.

G.5Findings as to What Occurred in the Ministerial Suite

501 Having made a series of factual findings leading up to the entry of Mr Lehrmann and Ms Higgins into the Ministerial Suite, identified what had motivated them to come back to the Suite, and as to aspects of their accounts of what then occurred, in this section I will: first, identify and consider five incontrovertible facts; secondly, summarise my findings as to the condition of Ms Higgins in the Suite; thirdly, identify post-incident events not already dealt Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369