Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/159

 approach notably absent from his evidence, such as his silly lies about whisky, French submarines or as to what happened at The Dock when the CCTV records establish what happened. Moreover, in truth it was a gamble either way once Mr Lehrmann decided to give an account and, if there had been corroborative medical records, then Mr Lehrmann would, I expect, have thought it likely some use would have been made of them in the broadcast – particularly given the way the Project team had used, as "contemporaneous" corroborative material bolstering Ms Higgins' credit, the bruise photograph. In any event, I am comfortably satisfied on the balance of probabilities that the instructions he gave his trial lawyers about no contact and a lack of sex were given because he knew the admission of sex with a drunk woman would mean the possibility of her lack of consent was brought squarely into issue and he feared the truth.

616 As to the second, as is already clear, I am satisfied Mr Lehrmann knew his account given to the AFP and to his legal representatives at the trial as to why he came back to Parliament House and what he did there was false. It is passing strange the account to the AFP was given in the absence of his then retained legal representative, but there is no need to speculate as to why this was the case.

617 As to the third, I am also satisfied the lies about there being no alcohol in the Ministerial Suite were deliberate and were said to divert the AFP from the truth and were advanced by him because he well realised that an admission he had sex with Ms Higgins, after she had been drinking heavily, could put him in some peril as implicating him in non-consensual sex. It is notable that his account to the AFP came after the broadcast of the last of three relevant Four Corners programmes (discussed below), which featured Ms Anderson saying Ms Higgins was inebriated when entering Parliament House and her subsequent discovery of Ms Higgins less than alert and naked on the couch.

618 But as Besanko J observed in Roberts-Smith, the circumstances in which lies can give rise to a finding of a consciousness of guilt or the making of an implied admission are complex and highly contentious, and one must be cautious before treating a lie as an implied admission.

619 An implied admission is, in the end, a piece of circumstantial evidence, which proves a fact from which another fact may be inferred. I have reached a level of satisfaction to the requisite standard as to what occurred in this case without the necessity to have regard to any reasoning based upon an implied admission or a consciousness of guilt on the part of Mr Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369