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579 I am not to rely on matters not in evidence.
580 What I am required to do, in applying the fact-finding principles I have explained, the facts found and agreed, and commonsense, is to assess the reliability of Ms Higgins' evidence as to her state of mind. That is, she did not consent because she was so drunk on the couch that at some point, she was not aware of her surroundings but then suddenly became aware of Mr Lehrmann being on top of her, at which time he was performing the sexual act, which he then continued to a conclusion.
581 In evaluating the cogency of this aspect of her evidence, I am required to have regard to all of the evidence, including contemporaneous representations made by Ms Higgins shortly after the incident, and a number of other matters, including:
- (1) the s 140(2)(a), (b) and (c) EA mandatory considerations, reflecting the necessity to approach the allegation with much care and caution and with weight being given to the presumption of innocence and exactness of proof expected;
- (2) the other fact-finding principles I have explained in Section E above, including but not limited to: (a) the need for me to reach a state of a reasonable satisfaction on the preponderance of probabilities; (b) the care required when there are a range of possibilities open and the only way one reaches a state of reasonable satisfaction as to one being proven is to conclude its existence is more likely than all the other hypotheses available on the evidence; and (c) that witnesses may be untruthful about some things and yet be truthful about others;
- (3) Ms Higgins' general lack of creditworthiness and the heightened caution therefore necessary in assessing any aspect of her evidence; and more particularly, the fact I have not accepted she expressly and repeatedly voiced her lack of consent.
