582 But in the end, it comes down to my assessment of whether Ms Higgins was telling the truth in the witness box when she gave this evidence as to her state of mind, having paid close attention to not only what she said, but her manner of saying it.
583 Notwithstanding the cautions to which I have referred, the full range of other possibilities combined, and taking all my reservations as to the credibility and reliability of Ms Higgins into account, her evidence that she was not fully aware of her surroundings but then suddenly became aware of Mr Lehrmann on top of her, at which time he was performing the sexual act, when given orally before me, struck me forcefully as being credible and as having the ring of truth. I use the term "fully aware" advisedly, as consciousness is best understood as not being a binary concept but rather as being on a continuum, and the evidence defies a finding as to her precise state of consciousness at a specific time.
584 In accepting this specific aspect of Ms Higgins' evidence, I have directed myself to bear in mind that like in any case where criminal conduct is sought to be proven based largely or exclusively on a single witness, it is important I am satisfied to the appropriate standard that the witness is both honest and accurate in the account given.
585 I have also been conscious of the dangers of too readily drawing conclusions about truthfulness and reliability based upon the appearance or demeanour of a witness while giving evidence. It is for this reason I have tried, as best I can, to limit my reliance on the appearances of witnesses and have attempted to reason my conclusions, as far as possible, based on contemporary materials, objectively established facts, and the apparent logic of events. But there is nothing about this finding that conflicts with objectively established facts or logic (and indeed when one has regard to the other events of the night and Ms Higgins' immediate post-incident conduct taken as a whole, including the consistency of her core allegation of sexual assault, the opposite is true).
586 At the risk of repetition, I am conscious of the fact that I must eschew inexact proofs, indefinite testimony, or indirect inferences and, in doing so, I am acutely aware that working out when a compromised witness such as Ms Higgins is telling the truth in one aspect of her evidence presents real challenges. But bearing all these matters in mind, I have reached a state of actual persuasion on the balance of probabilities that Ms Higgins: (a) was not fully aware of her surroundings when sexual intercourse commenced; and (b) did not consent to intercourse when she became aware Mr Lehrmann was "on top of her".
