rather than support, the prosecution's ability to prove non-consent, because it can be used to: suggest consent based on a "loss of inhibition" narrative; and/or challenge the credibility of the complainant as a witness and the reliability of their account.
121 But here, of course, the evidence adduced by Mr Lehrmann and the forensic choices he has made means he does not directly advance a "loss of inhibition" narrative and, significantly, any submission made as to the reliability of Ms Higgins as someone affected by alcohol is also relevant (if the evidence otherwise establishes sex took place) to the question of whether she was so affected by alcohol as to be incapable of consenting to sex.
E.5The Importance of Contemporaneous Representations
122 In a complex commercial case, Webb v GetSwift Limited (No 5) [2019] FCA 1533, I noted the following about the process of fact-finding (at [17]–[18]):
[17] …what matters most in the determination of the issues in cases such as this is the analysis of such contemporaneous notes and documents as may exist and the probabilities that can be derived from these documents and any other objective facts. ...
[18] As Leggatt J said in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]–[23], there are a number of difficulties with oral evidence based on recollection of events given the unreliability of human memory. Moreover, considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial… [T]he surest guide for deciding the case will be as identified by Leggatt J at [22]:
… the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on the witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.
123 As the Full Court later observed in Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126; (2018) 396 ALR 193 (at 254 [239] per Allsop CJ, Besanko and Middleton JJ), this approach might be best seen as a helpful working hypothesis, rather than something to be enshrined in any rule. Although these observations were made in the context of fact-finding in commercial cases, this does not mean they are anything but apposite to the fact-finding task to be undertaken in this defamation proceeding.
124 Moreover, in this case, in addition to file notes, texts, social media messages and emails, hours of audio, video and closed-circuit television (CCTV) footage has been adduced into evidence. I have reviewed this contemporaneous material and, for my manifold sins, have
