conjure up a number of possibilities (short of her frock just falling off) but we are here dealing with questions of likelihood, which leads to the next, more general, and so-called "critical" point.
605 Secondly, Mr Lehrmann submits that there are:
a number of plausible explanations for why Ms Higgins, being affected by alcohol, took off her dress and lay down naked on the Minister's couch. The existence of these plausible alternative explanations, coupled with a lack of independent reliable evidence to support the [r]espondents' submissions, makes any positive finding to the requisite standard that sexual activity took place, consensual or otherwise, unable to be supported by the evidence. Mr Lehrmann submits that the facts and circumstances of this case are archetypal of a 'Palmanova' situation – where no one hypotheses emerges as more likely to be correct than all of the other possibilities considered together.
606 Between the two poles advanced by Mr Lehrmann and Ms Higgins as to what happened are a range of possibilities, including "various permutations of consensual sexual activity (including anything from kissing or touching to sexual intercourse), or intercourse which was at law not consensual, but which Mr Lehrmann believed was consensual". Mr Lehrmann also submits it is necessary to consider scenarios where no sexual contact occurred despite a prior intention to engage in such activity on the part of either or both of them and, although such hypotheses were not explored in evidence, as a matter of ordinary human experience they naturally arise as possibilities and must therefore be considered.
607 These submissions are unquestionably correct so far as they go. No doubt inadvertently, however, some of the submissions, when articulated, came close to suggesting that to find the respondents' onus had been discharged, it was necessary I exclude all reasonable hypotheses consistent with the rape not having occurred (as if I was determining the case beyond reasonable doubt).
608 All these scenarios have been considered and some rank higher on the likelihood range than others. For example, scenarios that consensual sex occurred, or Mr Lehrmann was not reckless while having non-consensual sex, are more likely than scenarios they just "pashed" and drank whisky and Ms Higgins later just decided to take off her clothes for a lark or because she was feeling close or had a fit of the vapours, or that Ms Higgins "prepared herself" to have sex by lying down naked but fell asleep and Mr Lehrmann departed because of scruples as to not taking advantage of the otherwise willing Ms Higgins. Whether they are fanciful or just unpersuasive, they are all individually far less likely eventualities than what I
