Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/139

 reliability of sexual assault complaints by reason of some a priori view as to how victims of sexual assault are expected to behave. Reasoning based upon so-called "typical" behaviour of genuine victims, such as shunning or exhibiting hostile behaviours towards the perpetrator or avoiding contact is superficial and distorts the process of fact-finding.

533 In considering the validity of Ms Higgins' allegation, I do not consider Ms Higgins' actions in accepting a cup of coffee or responding to emails about news alerts or requesting Mr Lehrmann's professional help as important. They are consistent with there not being any issue between them but again, on the assumption she was a victim, they can be readily characterised as the actions of a woman who had not yet come to terms with what had happened to her but needed to confront the reality that she had to work out a way of being in the same professional office as a male colleague who had assaulted her. No doubt the struggle to work out how to respond would resonate with many women working in any type of workplace who have had to find some way of coping with such a predicament.

534 I have little doubt that if she had been raped, that by the time of these interactions, it is quite conceivable that Ms Higgins would be driven by conflicting emotions: self-doubt, concern that she would be humiliated by word leaking out to her colleagues and questioning the prudence of her own behaviour.

535 Moreover, these incidents cannot be assessed in a vacuum. It is also necessary to have regard to the fact that other contemporaneous actions of Ms Higgins are consistent with her being a victim of sexual assault. I have already considered her important contemporaneous representations to Mr Payne, Mr Dillaway, and Major Irvine. Below, in Section I, I make detailed findings as to relevant post-incident conduct, but it is worth mentioning some aspects of this behaviour in this part of my reasons, as they provide important context to the alleged counterintuitive behaviour.

536 First, was what was said to Mr Dillaway during their first discussion after the incident, while Ms Higgins is still in the Ministerial Suite. Because of what was said during that discussion, Mr Dillaway recounted his impression as follows in the Master Chronology (as recorded in Annexure H to the affidavit of Mr Auerbach sworn 2 April 2024 (MC) (at 15)):

I'd got the impression that she'd done - something had happened that she didn't want to tell me about. Um, but I wasn't sure what it was at that time, I probably assumed that maybe she just – she'd hooked up with another guy or something like that. Um, you know, had been out partying. Um, and then, you know, I was trying to- it didn't -

Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369