25 of the Defamation Act, the respondents are required to prove the substantial reality of every imputation, meaning it’s true in substance or not materially different from the truth. 564 But it isn’t as simple as that for at least two reasons: first, as I have explained, though I have found intercourse occurred, I am not fairly satisfied as to an facet of the account of Ms Higgins as to what occurred, that is, she repeatedly and expressly stated to Mr Lehrmann that he should cease; and secondly, the related inquiry on the substantial truth defence isn’t governed by whether or not Mr Lehrmann breached a specific statutory norm, being s 54(1) of the Crimes Act. This is not a criticism of the barristers however reflects the reality that the respondents say sexual intercourse occurred in such a approach as to mean it follows axiomatically that there must have been a rape; whereas Mr Lehrmann’s case is that no sexual intercourse occurred at all. 554 Whatever be the true position as to extra drinking, I am convinced, nonetheless, that sexual intercourse did happen and that it occurred with Mr Lehrmann on prime of Ms Higgins on the sofa within the Minister’s workplace.
551 As can be seen from the above, I’ve: (a) directed myself as to the principled strategy to fact-discovering; (b) identified why, on the idea of my credibility assessments and other reliable contemporaneous proof: (i) I reject the entirety of Mr Lehrmann’s account as to what occurred within the Ministerial Suite; and (ii) have identified elements of the account of Ms Higgins which can be inaccurately based or exhibit an obvious inconsistency; (c) made findings as to: (i) the situation of Ms Higgins; and (ii) the previous proximate interactions between Mr Lehrmann and Ms Higgins and their states of thoughts when they arrived at Parliament House; (d) recognized incontrovertible facts and drawn some conclusions from the existence of those information; and (e) considered any alleged counterintuitive behaviour and related put up-incident representations in proof. 547 In abstract, regardless of other issues as to her creditworthiness, any alleged put up-incident counterintuitive behaviour of Ms Higgins doesn’t materially affect my evaluation of the underlying cogency of her allegation she was assaulted. 538 Secondly, and importantly, are the representations made by Ms Higgins in conferences with Ms Brown recorded in Annexure B. Those communications present a girl working by a traumatic occasion and offering additional data notwithstanding she didn’t, at the moment, really feel able to say to Ms Brown in express phrases that she had been “raped” (which was a graphic word she initially had some – however not uniform – difficulty in applying to her experience).
534 I’ve little doubt that if she had been raped, that by the point of those interactions, it is sort of conceivable that Ms Higgins would be driven by conflicting emotions: self-doubt, concern that she can be humiliated by word leaking out to her colleagues and questioning the prudence of her personal behaviour. 550 Hence the proof of her contemporaneous representations to Ms Brown, Mr Payne, Mr Dillaway, Major Irvine, Mr O’Connor and, as we are going to see, the AFP on 1 April, can go beyond merely putting other submit-incident conduct in correct context however may also be used to point out consistency of conduct by Ms Higgins, some proof of the very fact of what was asserted within the representations; in this manner, the earlier representations are related to the reliability of Ms Higgins in this facet of her evidence. Below, in Section I, I make detailed findings as to relevant post-incident conduct, however it’s price mentioning some features of this behaviour on this a part of my causes, as they supply important context to the alleged counterintuitive behaviour. It suggests a sample of typical or “normal” behaviour of rape victims that takes inadequate account of the agreed info as to the attainable effects of trauma and the variability of response sexual trauma may cause.
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