64/ It is not as easy to say that Ms Higgins repeatedly said 'stop' and it is not whether he breached that statutory norm. Rape in this context does it mean something different to what Lehrmann was formed in the public system. Lee J is looking at the natural and ordinary meaning

65/ of the word 'rape'. It is what rape means in normal language in Australia. Consent also means what consent does in Australia. Respondents required to prove that Mr Lehrmann had sexual intercourse without Ms Higgins consent and knowing she did not consent. In relation to non-

66/ consent toxicology should prove she could not consent. Lee J does not consider that the two would have left together as a pointer to lack of consent. He is a cad, but it is understandable given that he had to get back to his girlfriend. Non-consent goes to Ms Higgins state of

67/ mind. Lee J finds she was passive. Wrongheaded to find that force or flight should be used. Lee J does not rely on tonic immobility. Lee J considers Ms Higgins evidence that she was unaware of her surroundings. Lee J said that her state of mind was that she did not know what

68/ was going on. She was not fully aware of what was happening. Lee J found that specific instance of her evidence he was actually persuaded that she was not consenting. The knowledge evidence that Ms Higgins was not consenting. But it is equally probable that Lehrmann might not

69/ know that Ms Higgins was not consenting. Lee J cannot be sure that Lehrmann was aware that Ms Higgins was not consenting. The fault element goes to recklessness and no parties considered it. Recklessness might go to indifference as to whether the complainant was consenting.

70/ It is sufficient that Mr Lehrmann might not have averred if the respondents established Mr Lehrmann was indifferent and went ahead. Lee J was satisfied that Lehrmann had sexual intercourse without caring whether Ms Higgins consented or not. Lee J finds that Lehrmann J was

71/ 'hell bent' on having sex with Higgins and he did not care one way or another, he finds that the knowledge element has been made out. [This shows that the 'truth' defence should be made out to Lee J's satisfactory]. He finds on the balance of probabilities that they had sex.

72/ Lee J stresses that this is not Beyond Reasonable Doubt, it is on the balance of probabilities. It is insufficient to form conclusion as to a criminal charge.
Damages is considered should the substantive truth defence not be upheld. Aggravated damages was amply made out, the