approximately 0.25% and a falling BAC, the effects of alcohol would likely have included sedation and increased tiredness, and would have increased the likelihood of falling asleep (Ex 877 (at [3.6]–[3.7])).
513 Despite the efforts of both parties to lend a patina of precision to what in truth is an inherently imprecise exercise based wholly upon assumptions, it is impossible to be certain as to Ms Higgins' BAC as at about 2:20am. What is far more important than any pinpoint BAC (which we will never know with certainty), is her general condition, that is, how her level of drunkenness affected her early that morning, and how I find it would have appeared to Mr Lehrmann.
514 I have already made findings that as early as four hours before, Ms Higgins was sufficiently affected such that the CCTV shows her losing her balance and stepping backwards to maintain balance (and there are later but less obvious indications recorded on the CCTV of her being less than entirely steady on her feet). CCTV suggests Mr Lehrmann must have been aware of at least one incident at The Dock demonstrating a lack of balance, and things then progressed (see above at [397]). He knew she was drinking excessively. It was evident to Ms Gain that Ms Higgins was drunk, and I am satisfied that the same observation would have been made by any sentient person observing her over an extended period.
515 Further, and importantly, there is the evidence I accept of Ms Gain, that Ms Higgins fell over, and Mr Lehrmann helped her to her feet and back into the seating booth. It must have been obvious to anyone that had seen (and been a party to) this incident that alcohol consumption had decreased Ms Higgins' motor co-ordination, and whatever may have been her precise BAC, she was seriously inebriated.
516 One then comes to the question of what happened in the Ministerial Suite. Intuitively, given what had been happening, one would think it likely the drinking continued given what we know about Mr Lehrmann encouraging Ms Higgins to imbibe and the rationale given by him for them both to come back to the Suite. After all, Mr Lehrmann said he was going to show Ms Higgins whisky – not Qing Dynasty ceramics. Moreover, very shortly after the incident, and before any allegation of sexual assault was made, Mr Lehrmann represented to Ms Brown (Annexure B) that he came back to drink whisky and ended up drinking two glasses; "chatted" with Ms Higgins but "didn't wish to get into" anything else they did; and said "they [that is, Ms Higgins and Mr Lehrmann] had a whisky".
