Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/142

 context, but one wonders why a daughter would say such a thing to a clearly loving father absent a genuine belief a sexual assault had taken place. For completeness, it is worth stressing these apparently candid communications with her father might be thought to have cogency because they occurred before the person later charged with the responsibility of "pitching" the project of the cover-up, Mr Sharaz, came into her life on 29 May 2020 (MC (at 63)), the important Four Corners programme, and the subsequent development of the cover-up narrative.

546 A further aspect of Ms Higgins' post-incident behaviour said by Mr Lehrmann to be "powerful evidence that Ms Higgins knew no sexual activity had taken place" was her failure to have a sexually transmitted infection check performed, despite telling Mr Dillaway she was doing so and her evidence she believed Mr Lehrmann "'finished' inside [of her]" (T630.10–12). I reject this submission. It suggests a pattern of typical or "normal" behaviour of rape victims that takes insufficient account of the agreed facts as to the possible effects of trauma and the variability of reaction sexual trauma can cause. There may be many reasons on the assumption Ms Higgins was a victim of rape for her not wanting to subject herself to such a process, particularly when the surrounding contemporaneous material suggests she had no intention of pursuing a complaint with the police at this time.

547 In summary, despite other concerns as to her creditworthiness, any alleged post-incident counterintuitive behaviour of Ms Higgins does not materially affect my assessment of the underlying cogency of her allegation she was assaulted. Further, considering all the post-incident conduct to which I have referred as a whole, it is not inconsistent with the conduct of a genuine victim of sexual assault struggling to process what happened, seeking to cope, and working through her options.

IVComplaint Evidence or Prior Consistent Statements

548 Before leaving the topic of the contemporaneous representations made by Ms Higgins which provide context to her other post-incident conduct, it is convenient here to make a further point.

549 This is a civil proceeding and so's 66(2) EA, applicable to complaint evidence, is not relevant. In this civil case, no objection was made as to the admissibility of any evidence of complaint or alleged prior consistent statements made by Ms Higgins, and I was not asked to exercise my discretion to limit the use of any such evidence under s 136 EA. Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369