Having regard to the style by which the choice in Tolmie was handled in Sims, I do not consider that it concerned a specific approval of Kirby P’s formulation of the concept. I consider that the formulation based on Kirby P’s causes in Tolmie, mirrored within the headnote, is a test which appropriately captures the essence of non-advertent recklessness: failing to think about one thing that within the circumstances one ought to. One instance, promoting for the NCAA, depicts a basketball player aiming a shot on one billboard; on the subsequent one, 90 yards (82 meters) away, is the basket. For example, there’s now not any precept in Australian widespread legislation respecting the only authorized persona of spouses (hence rape can happen within marriage), and the penetrative sexual offence is no longer gender-particular and, regardless of some inconsistencies, typically includes penetration of the genitalia by a penis, object, or a part of a physique or mouth. 568 It could also be stating the apparent, however given some submissions made by the parties, it is very important stress that I am not coping with whether, by reference to the civil commonplace of proof, Mr Lehrmann has breached a selected criminal provision below a law of the Australian Capital Territory.
Our focus is on what rape means in contemporary Australia – not by reference to what it may have meant historically or might imply sooner or later (if, for instance, legislative change eventually causes the abnormal notion of what constitutes consent to additionally change). It’s redolent of historical conceptions of rape, which relied upon notions of force and resistance, quite than the contemporary concentrate on voluntary consent. There has now been removing of specific references to force and the introduction of a consent customary based upon voluntary settlement. Having regard to the choice in Sims, the categorical reference to Tolmie must be to the acceptance of the idea of non-advertent recklessness rather than to the particular approval of the formulation as set out in the headnote. 601 In summary, I consider it more seemingly than not that in these early hours, after a protracted evening of conviviality and drinking, and having successfully brought Ms Higgins again to a secluded place, Mr Lehrmann was hell-bent on having intercourse with a woman he: (a) discovered sexually attractive; (b) had been mutually passionately kissing and touching; (c) had inspired to drink; and (d) knew had decreased inhibitions because she was very drunk.
It then says that as a result of “Mr Lehrmann knew that Ms Higgins had had a minimum of six spirit-based drinks on the Dock after which a number of further drinks at 88mph” that “his conduct in respect of consent to intercourse was at least reckless”. 550 Hence the proof of her contemporaneous representations to Ms Brown, Mr Payne, Mr Dillaway, Major Irvine, Mr O’Connor and, as we are going to see, the AFP on 1 April, can transcend merely putting other submit-incident conduct in correct context but may also be used to point out consistency of conduct by Ms Higgins, some proof of the fact of what was asserted within the representations; in this manner, the previous representations are relevant to the reliability of Ms Higgins on this facet of her proof. 584 In accepting this specific side of Ms Higgins’ proof, I’ve directed myself to keep in mind that like in any case where criminal conduct is sought to be confirmed based mostly largely or exclusively on a single witness, it is necessary I am glad to the suitable commonplace that the witness is each honest and accurate within the account given. 562 The submissions of all parties were lower than helpful in relation to this side of the case.
586 At the danger of repetition, I am acutely aware of the fact that I must eschew inexact proofs, indefinite testimony, or indirect inferences and, in doing so, I’m acutely conscious that figuring out when a compromised witness equivalent to Ms Higgins is telling the reality in one facet of her evidence presents real challenges. 585 I have also been aware of the dangers of too readily drawing conclusions about truthfulness and reliability primarily based upon the appearance or demeanour of a witness whereas giving proof. 583 Notwithstanding the cautions to which I’ve referred, the full vary of different possibilities mixed, and taking all my reservations as to the credibility and reliability of Ms Higgins under consideration, her evidence that she was not totally conscious of her surroundings however then all of a sudden turned aware of Mr Lehrmann on top of her, at which time he was performing the sexual act, when given orally earlier than me, struck me forcefully as being credible and as having the ring of reality.