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 to Ms Higgins' consent, and hence went ahead with sexual intercourse without caring whether she consented. This conclusion is not mandated by, but is consistent with, my finding that intercourse commenced when Ms Higgins was not fully cognitively aware of what was happening.

601 In summary, I consider it more likely than not that in those early hours, after a long night of conviviality and drinking, and having successfully brought Ms Higgins back to a secluded place, Mr Lehrmann was hell-bent on having sex with a woman he: (a) found sexually attractive; (b) had been mutually passionately kissing and touching; (c) had encouraged to drink; and (d) knew had reduced inhibitions because she was very drunk. In his pursuit of gratification, he did not care one way or another whether Ms Higgins understood or agreed to what was going on.

602 Because of what I find to be Mr Lehrmann's state of mind of non-advertent recklessness, the knowledge element has been made out.

IVFurther Observations as to Mr Lehrmann's "Critical" Submission

603 For completeness, I note that in reaching this conclusion, I have fully considered all the submissions made by Mr Lehrmann, including one his counsel described as "critical". It is worth making three short points as to aspects of Mr Lehrmann's submissions, to the extent I have not otherwise sufficiently dealt with them.

604 First, the important corroborative evidence of Ms Anderson is minimised by asserting her observations as to the state of Ms Higgins' make-up create a difficulty for the respondents and that although "Ms Higgins was found asleep on the couch naked", this could be because "it simply made her feel more comfortable" or "she decided to remove her dress before she lay down on the couch as she may have wanted or tried to avoid vomiting on her dress, and then passed out asleep". I do not regard these submissions as being in the least persuasive. Ms Anderson's fleeting observations upon being confronted by the surprising sight of Ms Higgins looking up at her, not in obvious distress but sufficiently unaware of her surroundings to just stir herself to turn over into the foetal position like a naked new-born babe, are hardly likely to have precision as to such a minor matter. In any event, without getting into the vulgarities, commonsense suggests the sort of sexual activity I find took place would not necessarily result in a woman's make-up being smeared all over her face (as the submission implicitly suggests). As to the point about the dress, ingenuity may be able to Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369