Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/137

 521 During her entry, the CCTV footage demonstrates she was not paralytically drunk and was, at this time, able to function to a certain level. Consistently with this, the experienced Mr Fairweather let her in. But understandably given the nature of his limited observations, he was not able to appreciate how far her cognition had been affected and, in particular, how her inhibitions and decision-making capacity had been impaired.

522 Unlike the security guards, but like Ms Gain on the night, we have an excellent idea of the extent of Ms Higgins' drinking and, taking all the evidence together, by 2:20am or so, I am comfortably satisfied that Ms Higgins was a very drunk 24-year-old woman, and her cognitive abilities were significantly impacted. Given this state and the late hour, it is highly likely she was prone to drowsiness. This is strongly supported by the fact, as Mr Lehrmann put it in his final submissions, that she "passed out naked in the Minister's suite" (emphasis added) and my finding she was still very significantly affected two hours after she was left alone.

523 Further, in the light of my findings as to Mr Lehrmann's conduct, I am also satisfied he was aware of her condition.

524 For completeness, I should mention that in Section I.2 below, I refer to a contemporaneous note of Assistant Commissioner Close of a meeting on 4 April, which contains a reference to "info that alleged victim may have been drugged". This representation is in evidence before me because no objection was made by Mr Lehrmann as to its admissibility, no application was made for its discretionary exclusion, nor was any application made for a limitation on its use under's 136 EA. Despite this, it is of such a speculative nature to have no probative value. No other suggestion of this type has been made in the evidence and no party has made submissions about this topic. In these circumstances, I ought to give it no weight and put it (and a related representation made in the same document as to any other incident) out of my mind.

IIIPost-incident Conduct

525 It is next worth pausing to check the suggested counterintuitive behaviour pointed to by Mr Lehrmann that might rationally bear upon what happened in the Minister's office and any other relevant post-incident conduct. In this regard, it is, of course, necessary to again have regard to the agreed facts as to the effect of trauma and alcohol on recollection. Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369