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 550 Hence the evidence of her contemporaneous representations to Ms Brown, Mr Payne, Mr Dillaway, Major Irvine, Mr O'Connor and, as we will see, the AFP on 1 April, can go beyond merely putting other post-incident conduct in proper context but can also be used to show consistency of conduct by Ms Higgins, some proof of the fact of what was asserted in the representations; in this way, the previous representations are relevant to the reliability of Ms Higgins in this aspect of her evidence.

VWhat Happened?

551 As can be seen from the above, I have: (a) directed myself as to the principled approach to fact-finding; (b) identified why, on the basis of my credibility assessments and other reliable contemporaneous evidence: (i) I reject the entirety of Mr Lehrmann's account as to what occurred in the Ministerial Suite; and (ii) have identified aspects of the account of Ms Higgins that are inaccurately based or exhibit an apparent inconsistency; (c) made findings as to: (i) the condition of Ms Higgins; and (ii) the preceding proximate interactions between Mr Lehrmann and Ms Higgins and their states of mind when they arrived at Parliament House; (d) identified incontrovertible facts and drawn some conclusions from the existence of those facts; and (e) considered any alleged counterintuitive behaviour and relevant post-incident representations in evidence.

552 Against this background, and in the context of my other conclusions as to what occurred, I now come to identifying what happened within the Ministerial Suite. In doing so, I will distinguish between something that might have happened (but where I am unable to reach a sufficient level of satisfaction to allow a finding of fact to be made), and something that on the balance of probabilities did happen (where I have reached the requisite level of satisfaction to make a finding of fact).

553 As to the former, it is possible, for example, that Mr Lehrmann left Ms Higgins on the office ledge for a period as she asserts, but only while he obtained his whisky and glasses and was ready to usher her into the Minister's office – but I cannot be satisfied that this was the case. Although I suspect Ms Higgins was telling the truth about being on the ledge for some short period, it is also possible that they both entered the Minister's office and immediately started drinking, but again I have not reached the requisite level of satisfaction.

554 Whatever be the true position as to additional drinking, I am convinced, however, that sexual intercourse did take place and that it took place with Mr Lehrmann on top of Ms Higgins on Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369