144 EA, I assume would have been 30ml nips). I am fortified in this view given that the group stayed in 88mph for a period in excess of an hour and a half.
409 But whatever else may be less than pellucid, one thing did emerge with clarity from the evidence of Ms Gain: that at 88mph "Brittany hooked up with Bruce" (Ex R59).
410 I am amply satisfied that I ought to reject the evidence of Mr Lehrmann and Ms Higgins which is inconsistent with this account of Ms Gain. In particular, I reject Mr Lehrmann's denial of "pash[ing]" Ms Higgins (T297.5–11) and "any intimate behaviour" with Ms Higgins at 88mph (T301.16–17).
411 As to Ms Higgins, she asserted that Mr Lehrmann was "all over her space" (T620.17–24) and gave evidence that (T620.7–10):
I remember him having his arm around my shoulder. I remember him touching me and I remember having, like, a thought process of – of discomfort, but not wanting to vocalise a discomfort, so I remember that. I – I called it handsy. I felt him being handsy with me.
412 Ms Higgins' evidence that she was passive and discomforted is an example, on one level understandably, of Ms Higgins moulding her recollection. Despite her evidence, and as much as Ms Higgins might regret it, as Ms Gain recalled, they were "quite touchy with one another" (T1106.20) and "his hands [were] on her thighs and her hands [were] on his thighs" (T1107.1–2) and they engaged in a mutually passionate kiss. This was "a real kiss"; more than "a peck, it was very much a kiss kiss", a "passionate kiss" and a "pash" (T1107.4–21). The submission made by Network Ten that Ms Gain's account is "entirely consistent with Ms Higgins' account" is, with respect, silly. One does not "pash" passively.
413 Mr Lehrmann was acting upon his attraction to Ms Higgins, and the less than sober Ms Higgins was sufficiently uninhibited to be a not unwilling participant in the level of intimacy Ms Gain described. Any discomfort was not evident to Ms Gain, who viewed what was happening as mutually intimate conduct by two young people "hooking up" in a nightclub.
414 I also accept the evidence of Ms Gain that Ms Higgins fell over and was required to be helped back up (T1106.18). This happened close to the booth, and Mr Lehrmann was the one to help her to her feet and back into the booth (T1106.35–46). She could not recall if Ms Higgins injured herself in the fall (T1116.30–35). Although, based upon Ms Gain's evidence, this incident occurred and there may have been other stumbling, including on the stairs, I am not
