Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/134

 508 I have deliberately used the term "state of undress" because there is some question as to whether Ms Higgins was fully naked, which I will resolve below, but with that qualification, all the matters specified above are not in contest.

509 What one can directly infer from these incontrovertible facts is that: (a) there was sufficient time for Mr Lehrmann and Ms Higgins to continue to drink whisky together and/or to have coitus; (b) Mr Lehrmann was either engaged in sexual intercourse, conduct preparatory to this act, or some other activity between 2:16 and 2:18am and did not appreciate his girlfriend was calling him, or was aware of the calls but ignored them; (c) by the end of the 40 minutes, Ms Higgins was sufficiently affected by alcohol not to leave the Suite to go home but in her state had come to be lying naked or semi-naked on the couch; and (d) one hour and fifty minutes later, Ms Higgins was, although not in obvious distress, sufficiently discombobulated that when seen by a uniformed stranger, did not interact verbally and did not move immediately to recover her modesty by putting on her dress or covering herself.

510 I now turn to making findings as to Ms Higgins' condition at the critical time, which, for reasons I will explain, I regard as being towards the end of the 40-minute period and shortly before Mr Lehrmann left, that is, around 2:20am or thereabouts (or about two hours prior to being found by Ms Anderson).

IIThe Condition of Ms Higgins in the Suite

511 Dr Robertson's video observations of Ms Higgins half an hour earlier (at around 1:50am) were that she exhibited no "obvious" signs of intoxication in the sense of being able to walk through the check point unassisted, although he observed that: (a) she was required to support herself by holding on to the table when seeking to put her shoes back on (T1997.8–13) (Ex R877 (at [3.4])); and (b) at this stage, it was likely that Ms Higgins had developed some acute tolerance to alcohol and, as such, was likely to appear less intoxicated, particularly if her Blood Alcohol Content (BAC) (being a measure of alcohol in the blood as a percentage calculated in grams per 100 millilitre of blood) was falling at this time (Ex R877 (at [3.4])).

512 Dr Robertson was asked to opine on the likelihood of Ms Higgins falling asleep having regard to her level of intoxication between 1:50am and 2:15am. Dr Robertson's evidence (on the highly contestable and conservative assumptions as to the extent of drinking at 88mph and that drinking ended at or shortly prior to 1:30am), was that it is likely that at 1:50am and 2:15am, Ms Higgins' BAC would have peaked and was likely falling. Assuming a BAC of Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369