Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/82

 deleted a text message to Ms Gain after almost two years of no contact (T926.4). It is a message that does Ms Higgins no credit, worsened by her fortunately unsuccessful attempt to delete any record she had of it. The message was said by Ms Higgins to be a "cathartic thing for me to get off my chest" and "random" (T923.30–924.21)–but it was no such thing. I am comfortably satisfied it amounted to an attempt to prompt Ms Gain of the details of the night in question and impress upon her the allegation of Ms Higgins that she had been sexually assaulted (and the effect of that assault) before anyone spoke to Ms Gain to get her independent account of what may have been said to her. Despite this, Ms Gain forcefully pushed back on assertions that her genuine independent recollection may have been polluted.

285 Ms Gain gave considered answers to all questions asked of her, was forthcoming as to the quality of her recollection, and was unflappable when tested under cross-examination. I have no reason to disbelieve any of her evidence and I accept it.

F.5Major Irvine

286 Major Irvine was also an important and impressive witness who generally gave responsive, careful, and considered evidence.

287 I reject the suggestion made on behalf of Mr Lehrmann in submissions that Major Irvine's evidence should be approached with caution because of a lack of contemporaneous notes and the possibility of subconscious infection of her recollection "from other information". Although the suggestion was put that she might have difficulty delineating between recollection and reconstruction, she gave evidence, which seems to me to make intuitive sense, that she deliberately decided not to make any records so as to be protective of Ms Higgins' information and disagreed that this meant her independent recollection of events (which, in her mind, were significant) were distorted by subsequent publicity.

288 Unlike Ms Gain, it is fair to say that she was, at times, a combative witness, but having observed her closely, I think this was more the result of her personality than seeking to be an advocate against Mr Lehrmann's interests.

289 There were two aspects of Major Irvine's evidence which initially gave me some pause, being: first, her assertion, when tested about her ability to recall what happened at The Dock, that she had an independent recollection of "who was sitting where or who drank what … because someone told me she was raped three days later" (T1190.19–24). This seemed a somewhat forced and non-responsive riposte (although on one level understandable). I was Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369