113 Prior to trial, Network Ten served purported expert evidence seeking to establish that aspects of Ms Higgins' behaviour were not demonstrative of untruthfulness by reference to common or usual patterns of behaviour (as was anticipated would be asserted by Mr Lehrmann in cross-examination). This evidence was not proposed to be adduced by Network Ten in support of a submission that it was probable Ms Higgins was telling the truth, nor that her behaviour following the alleged rape rendered it more or less likely that the assault had occurred as alleged. Rather, the opinion evidence was said to support the proposition that any counterintuitive behaviour relied upon by Mr Lehrmann was of neutral significance.
114 It was a type of evidence discussed by Associate Professor Jacqueline Horan and Professor Jane Goodman-Delahunty in their article 'Expert Evidence to Counteract Jury Misconceptions about Consent in Sexual Assault Cases: Failures and Lessons Learned' (2020) 43(2) UNSW Law Journal 707. In that article (dealing with how so-called "rape myths" play a role in jury decision-making), the authors observed (at 710–11):
Legal authorities in Australia, Canada, New Zealand, the United Kingdom and the United States of America accept that sexual assault myths and misconceptions have a potential to exert an undue influence on triers of fact when deliberating about a sexual assault case. To avoid this undesirable influence, courts rely on traditional processes to educate juries so that they can better assess the evidence in a sexual assault trial on a sound factual basis. The two primary mechanisms to counteract the undue influence of sexual assault myths are expert evidence and judicial directions.
Over the last decade, counterintuitive expert evidence has been permitted to educate the jury as to how complainants vary in their behaviour both during and following a sexual assault. Legal practitioners and academics have noted that this provision remains underused, despite the widely acknowledged need for this type of educative intervention.
115 Such opinions as to "counterintuitive evidence" have been admitted under s 108C(1) EA in criminal sexual assault trials in a number of cases, including: Hoyle v R [2018] ACTCA 42; (2018) 339 FLR 11 (at 46–48 [223]–[244] per Murrell CJ, Burns and North JJ); MA v R [2013] VSCA 20; (2013) 226 A Crim R 575 (at 586–587 [45]–[52] per Osborn JA; at 595 [95] per Redlich and Whelan JJA); R v Kirkham [2020] NSWDC 658 (at [41]–[42] per McLennan DCJ); Aziz (a pseudonym) v R [2022] NSWCCA 76; (2022) 297 A Crim R 345 (at 355–363 [49]–[92] per Simpson AJA, Lonergan J agreeing).
116 The evidence was objected to by Mr Lehrmann on a number of grounds, which are now unnecessary to detail. Prior to ruling on the objections, I raised with the parties my preliminary view that even if the evidence was admissible, it would be, at best, of marginal
