I The First Interview, Weaponisation, Incomplete Data, and the Bruise Photograph
789 Mr Llewellyn, Ms Wilkinson, Mr Sharaz and Ms Higgins met on 27 January 2021 at The Darling Hotel in Sydney over an almost five-hour period (Ex 36).
790 The respondents asserted the purpose of the first interview was for Mr Llewellyn and Ms Wilkinson to determine whether the story was worth pursuing and to assess Ms Higgins' reliability and credibility as a source. This does not ring at all true from listening to the audio recording (Ex 36). Ms Wilkinson was onboard with telling the explosive story before even meeting Ms Higgins. More realistically, the purpose was for Ms Higgins to tell her story so information obtained could be used by Mr Llewellyn to come up with themes to cover in the draft questions for the filmed interview, and to obtain information for conducting further investigations to support the narrative and to build rapport with Ms Higgins so that she felt comfortable.
791 In their affidavits Mr Llewellyn and Ms Wilkinson gave evidence they had formed the view that Ms Higgins was "traumatised", "raw", and "emotional" and felt she had been "let down by those she worked with": (Llewellyn (at [127]); Wilkinson 28 July 2023 (at [74])). They believed her when she said she did not pursue her complaint due to difficulties encountered by the AFP in obtaining CCTV footage from Parliament House; concerns she had about her job; and pressure she felt to go to Western Australia to help campaign for the Federal election. Mr Llewellyn said he thought Ms Higgins wanted to speak out about her experience to create change, to prevent it from happening to anyone else and did not consider she had a vendetta (Llewellyn (at [179])).
792 There may be some truth in this, but any suggestion Ms Wilkinson or Mr Llewellyn: (a) conscientiously considered the motives of Ms Higgins and Mr Sharaz; or (b) approached the story with disinterested professional scepticism, conflicts with the way they were prepared to assist in the plans of Mr Sharaz and Ms Higgins to use the allegations for immediate political advantage, and the lack of rigour with which Ms Higgins' account was examined and questioned during the meeting and thereafter.
793 It is notable how much in his evidence-in-chief Mr Llewellyn stressed the importance of this first meeting in terms of research and preparation of the programme, including that it allowed him to assess the demeanour of Ms Higgins and to determine whether the details provided would give more or less "confidence in her believability" and "whether to take the story further" (Llewellyn (at [98(d)]). I am sensible to the need to build rapport and for sensitivity in dealing with a person presenting as a victim of sexual assault, but assessing the credibility of someone making claims of serious wrongdoing involves some degree of detachment and testing absent from the meeting and later interactions - all the more so when concerns (or at least matters requiring caution) ought to have become apparent to an independent mind.
794 The first of these matters was that Mr Sharaz's intentions in making and pursuing his "Project Pitch" were manifest: not only from his initial assertion that this was a story all about the Liberal Party and a female Minister in the context of the "MeToo" movement, but in the light of his expressed intention to liaise with an Opposition frontbencher to deploy the allegations against the Government during Question Time. Mr Llewellyn apparently thought this was of no moment and irrelevant to his stated purpose of assessing "believability", including the question of motive. When it was suggested in cross-examination that he knew that Mr Sharaz intended to assist the Opposition to pursue the issue in Parliament, his response was "maybe"; this qualified answer was said to be justified because "well he doesn't say that he's going to" (T1629.43). Mr Llewellyn then clarified his position to say that he did not know whether Mr Sharaz would go through with this plan, before saying "I didn't think [Sharaz] had a political agenda" (T1630.23).
795 It appears Mr Llewellyn was uninterested in reflecting upon Mr Sharaz's motives. In the light of what had been communicated by Mr Sharaz before and during this first interview, any journalist who did not think Mr Sharaz had a motivation to inflict immediate political damage would have to be wilfully blind. Of course, Mr Sharaz was perfectly entitled to work with the Opposition and to use any truthful allegations as to what happened to damage the Government. And the mere fact he had such a motive does not mean what is being said by his girlfriend was anything other than true. But it is important context, and a journalist acting reasonably would recognise this motivation and scrutinise what was being conveyed cognisant of it.
796 It does appear that prior to the meeting, Mr Llewellyn did conduct an internet search and knew Mr Sharaz had "married a political staffer" and sent it to Ms Wilkinson. Ms Wilkinson (who had seen the same details), in response, described Mr Sharaz, like Ms Higgins, as "two birds with broken wings who have seen the inside of Canberra and don't like what they see" - a zoomorphism with which Mr Llewellyn expressed his agreement (Ex R186; Ex R187). It does not appear anything changed, and they continued to believe this was an appropriate characterisation.
797 What we know is that insufficient recognition of motive did not only fail to cause increased care, but Mr Llewellyn and Ms Wilkinson expressed a willingness to assist in the political use of the serious charges they were supposedly interrogating and assessing with independent minds, as is evident from the following (Ex 36 (at 1:14:09-1:53:34)):
Mr Sharaz:
And for your reference, we'll get down to this later, but the reason we've chosen the timeline we've had is because it's a sitting week when we want the story to come out. A break and then -
Ms Wilkinson:
That's what we wanted to know. Why March?
Mr Sharaz:
And then the Senate goes to in March and that's when I'm going to talk to, I've got a friend in Labour, Katie Gallagher on the Labour side, who will probe and continue it going. So sitting week, story comes out, they have to answer questions at question time, it's a mess for them. March, Senate estimates. Hopefully we can try and get the footage, that sort of stuff, for Britt's clarity, and then he's going to call an election in whenever he calls it.
Ms Higgins:
Soon.
Mr Sharaz:
That's why Britt's picked that timeline.
Mr Llewellyn:
Ok.
Ms Wilkinson:
Because you're taking back ownership of your story and what happened to you to make sure that it can't happen to others. And it changes the culture as much as is possible. Because you're also riding on the back of the Four Corners story, as you know.
Ms Higgins:
Yep, yep.
Mr Sharaz:
Exactly.
***
Mr Sharaz:
And you can't prosecute the Liberal Party and the only, it's the court of public opinion that can get them. You can't get them in court.
Ms Higgins:
Yeah, I know. No. No, I'm not going to, I just, yeah.
***
Mr Sharaz:
The twenty-first of Feb you could do that story, that's ahead of that sitting week. And the March is when estimates is.
Ms Wilkinson:
Oh, right. So, we -
Mr Sharaz:
So, I don't know if that's too soon for you.
***
Mr Llewellyn:
So, twenty-first of Feb would be the ideal broadcast date.
Ms Higgins:
Yeah.
Mr Llewellyn:
When - so, there's questions in that next week, and then what does the, that first sitting week in March, is that Senate estimates?
Ms Higgins:
I think it's two weeks in, and I think it's mid-March is when Senate estimates is back.
Mr Llewellyn:
Okay. So, twenty-first or twenty-eighth, just as long as it's before Senate estimates?
Ms Higgins:
It'd be good to get a question time in, I think.
Mr Llewellyn:
Ah, right.
Ms Higgins:
Yeah.
Mr Sharaz:
So, you want to do it on the sitting week. So, that Sunday ahead of the sitting week.
Ms Higgins:
So, they're actually, they're all stuck in Parliament House with it.
Mr Llewellyn:
Got it. Okay. So, question time follows the twenty-first of Feb. Okay.
Ms Higgins:
Yep.
Mr Llewellyn:
Do you have friendly MPs you know that could fire questions in question time?
Ms Higgins:
We could find some.
Ms Wilkinson:
Oh, certainly, Albo.
Mr Sharaz:
Yeah. We just -
Ms Wilkinson:
Albo's a bit of a dead duck at the moment, but anyway.
Mr Sharaz:
Well, he's in a car crash, leave him alone, he got a lot coverage out of that.
Ms Wilkinson:
Tanya Plibersek, definitely.
Mr Sharaz:
Yeah.
Ms Higgins:
I'm nervous about the day after. You know how, I don't know if you guys do it, but you back in, you get friendlies to kind of back in your story. I'm kind of nervous that I'm going to be like a little -
Mr Llewellyn:
There'll be no friendlies?
Ms Higgins:
No.
Mr Llewellyn:
Yeah, if, I mean, Julia Banks, can we get her on ABC Breakfast or something? Like, you need people backing it in.
***
Mr Sharaz:
Because you want friendlies so that they don't saturate the airtime with Craig Kelly, oh, women just need to suck it up. You need, because they're going to -
Mr Llewellyn:
Yeah. Turnbull was the one, you know, when he was doing his book, came out and said it's like the nineteen eighties.
Mr Sharaz:
Yeah.
Ms Higgins:
He's already done Four Corners, though, and he'd want to make this his -
Mr Sharaz:
His thing.
Mr Llewellyn:
He does hate Morrison. Does he hate him that much?
Ms Wilkinson:
No, I don't, yeah, I think so. Malcolm, I know Malcolm well.
Mr Llewellyn:
Yeah.
Ms Wilkinson:
I've known him since I was in magazines.
Mr Llewellyn:
Yeah, I know.
***
Ms Wilkinson:
I reckon Malcolm will talk, Julie Bishop, I don't know. How close is she to Michaelia Cash and Linda Reynolds? They're all Perth girls.
***
Ms Wilkinson:
I'm a great believer in people's time will come. I'm incredibly salacious time -
Mr Sharaz:
Is it Linda's time, please, god, let it be Linda's time.
Ms Wilkinson:
Well, I think it might be.
***
Ms Wilkinson:
And if anybody wants to feel fired up about zeroing in on Linda Reynolds, I just found our private messages.
Ms Higgins:
Oh god.
Ms Wilkinson:
Did you see our private exchange?
Ms Higgins:
I did, I did, it was very scary.
Ms Wilkinson:
So, I said, we, she went for me, publicly, and then I tried to come back reasonably, and then I thought, I'm not going to do this publicly. I'm trying to work out who this fing woman is, I'd never heard of her. She's a nobody, I'd never heard of her.
***
Ms Wilkinson:
And it was literally about a week after I'd had the exchange with her. I just thought, this woman, this idiot is everywhere.
Ms Higgins:
Once again, she was sort of promoted really quickly, was never really sort of tried and put through her -
Ms Wilkinson:
Well, because they were plugging that hole.
***
Ms Higgins:
Broadly, I don't think they super care about my mental health. I don't think they are invested, personally, whether I'm smiling or -
Ms Wilkinson:
No, but the other three people at this table are.
Ms Higgins:
That's nice.
Mr Sharaz:
No, Linda cares.
Ms Wilkinson:
I've got, I've so got her in my sights now. Now that I've refreshed my memory on that.
Mr Sharaz:
Do you, because I said to Britt, ultimately, what do you want out of this. She goes, well, I want Bruce to forever have it difficult getting a job, like it's going to be difficult for me.
Ms Wilkinson:
Yeah.
Mr Sharaz:
And then you said, best case scenario, Linda Reynolds.
***
Ms Higgins:
Yeah, but obviously, you know who the biggest spender in Defence contracting is?
Mr Sharaz:
Linda Reynolds, yeah.
Ms Higgins:
Yeah. We're all shocked.
Mr Llewellyn:
The best bit is Linda Reynolds will see this story through my company, because we send her her media clips.
Ms Higgins:
We're doing a parliamentary showcase before all this starts. So, it's going to be great, we're having fun.
***
Ms Wilkinson:
The only problem with Julie [Bishop] is, do we let her know that we're doing this or do we just -
Mr Llewellyn:
No.
Ms Wilkinson:
- run great grabs of her, which, because she wanted to up her price on the corporate speaking circuit. So, in that period before Covid, she was making, like, forty grand a corporate speech to high level banks and all the big corporations. And the one topic they wanted her to talk about was how women need to be lifted up.
Ms Wilkinson:
So, I mean, she shat all over the Liberal Party at a Woman's Weekly Women of the Future Awards. I've seen her give the same speech about four times, and she always talks about the same stuff. So, if we worry that Julie will not play ball with us, then we just need to get those grabs. That's really what we need.
Ms Wilkinson:
Because that's when we got -
Ms Higgins:
Yeah.
Ms Wilkinson:
- the truthful Julie. Every other time she was asked to speak for the sisterhood, when it didn't work for her financially, she wouldn't do it. And I worry that she will get into someone's ear in the Liberal Party.
***
Ms Higgins:
Well, the best is the plausible deniability of Scott Morrison, post Four Corners, when he said that that was a Turnbull Government issue. And that's sort of what sparked my, I was like, f you.
Ms Wilkinson:
Yeah. Very much so. This one was under his watch.
Ms Higgins:
Yeah, it was his team.
Ms Wilkinson:
Yep.
798 Secondly, and relatedly, Mr Llewellyn knew it was Mr Sharaz who was "the one to get the story told", had pitched the project to journalists he personally selected, and was putting himself forward as a conduit for communication. At first glance, one would have thought this would have prompted efforts to ensure all important communications thereafter were with Ms Higgins directly. This does not mean Ms Higgins should have been patronised and it somehow assumed she was acting under the Svengali-like influence of Mr Sharaz, and it became evident she was very much aware of what was going on, but it was unusual that he be used as the conduit for information. Although reasonable minds might differ, Mr Llewellyn genuinely thought it was appropriate to use Mr Sharaz as a conduit in order to communicate with Ms Higgins (T1536.28-29). In fairness to him, it also became apparent that Ms Higgins was quite content for Mr Sharaz to be the primary point of contact and she shared Mr Sharaz's views about the culpability and shortcomings of various politicians and they both very much wanted to hold them to account. But dealing with Ms Higgins in this way increased the need for care and caution.
799 Thirdly, was the remarkable assertion by Ms Higgins that her phone might have been remotely wiped (Ex 36 (at 1:42:06)). Mr Llewellyn's evidence that he took that suggestion with a "massive grain of salt" and that he thought it sounded fanciful (T1514.13-1515.3) is significant and merits attention. One would have thought this was a warning light alerting to the necessity for care in assessing whether the maker of such a representation was open to speculation and conspiracies. Indeed, in written submissions, Network Ten accepted this amounted to a "conspiracy theory". Apart from the more general credit concern, it is decidedly odd that in these circumstances, Mr Llewellyn did not wonder why certain material was being provided but some was unavailable (T1516.9-33). In this regard, it is not obvious Ms Wilkinson, at least initially, thought this prospect of remote deletion was fanciful. I referred above to Mr Sharaz's accusation during the first interview (Ex 36 (at 0:06:00)) that "the Liberal Party provided [Ms Higgins] a psychologist who encouraged her not to do anything about it" (which was later not embraced by Ms Higgins). But the immediate response to the possibility an email existed corroborating this further claim was for Ms Wilkinson to say: "Given what happened to your phone, which we'll get to, I'd be retrieving that in the next 24 hours", that is, apparently entertaining the notion that such a document might also be deleted.
800 Fourthly, there was not only the incomplete data but also the nature of the most important aspect of limited material said to be available, being corroborative photographs of a bruise. Importantly, Mr Sharaz had introduced the bruise photograph in establishing the credibility of Ms Higgins' rape allegation in the following exchange (Ex 36 (at 0:13:12-42)), in the context of discussing the difficulty of proving rape:
Ms Higgins:
… fundamentally, at the end of the day, it'll come down to my word against his. And if I don't have any corroborative evidence, whether it's the tapes, whether it's the logs, I don't, I think -
Mr Sharaz:
He can just say, oh, we just had consensual sex.
Ms Wilkinson:
Yeah.
Mr Sharaz:
You've got a, let me, I'm sure you'll tell Lisa, you've got a photo of a bruise. But there was no rape kit or anything. There's nothing that we can kind of -
Ms Higgins:
No.
801 As Mr Sharaz anticipated, towards the end of the meeting, Ms Higgins pointed out (Ex 36 (at 1:23:37)):
Yeah. Yeah. I've, on my phone, a photo of my leg. I was, because he had pinned me down and I'm, I was in quite a lot of pain. I think that's kind of what woke me, sort of snapped me out of it, or woke me up. I was in a lot of pain, the way that my leg was sort of caught up against the couch. He was putting a lot of pressure on it. So, I had this big bruise on my thigh.
802 The following exchange then occurred (Ex 36 (at 1:24:21)):
Ms Wilkinson:
Have you got the photo there?
Ms Higgins:
Yeah, yeah, of course.
Ms Wilkinson:
So, you took that when you were in the office, just when it happened, or a couple of days later?
Ms Higgins:
Couple of days after.
Mr Llewellyn:
When the bruise appeared.
803 Pausing for a moment (as Ms Wilkinson and Mr Llewellyn ought to have done), here was an item of contemporaneous evidence said to elevate the accusation beyond a "she said, he said" contest. But both Ms Wilkinson and Mr Llewellyn moved on (by asking about seeing a doctor or contraception) at which time (and unresponsively to a question) Ms Higgins changed the subject to bring them back to something she and Mr Sharaz had evidently discussed and considered important to the credibility of her account (Ex 36 (at 1:24:58)):
Mr Llewellyn:
And were you on any contraception?
Ms Higgins:
Brittany: No.
Mr Llewellyn:
Sorry, I know these are hideously private questions for me to ask.
Ms Higgins:
No, it's fine, it's fine. I guess you can kind of see it in that photo, I've got a different one. But it's, it was just, it was like this weird, largescale bruise, it was on my thigh.
Mr Llewellyn:
Yeah, so that's like -
Ms Higgins:
It was the whole leg, but it was, because it was really pressed -
Mr Llewellyn:
Because I can see the line there.
Ms Higgins:
Yeah. And it wasn't like a deep purple, but it was just this weird -
Ms Wilkinson:
Oh, right.
Ms Higgins:
- pressure bruise. I don't know. I don't know, it was weird.
Mr Llewellyn:
And -
Ms Wilkinson:
Oh, I see.
804 So now there were two photographs. Mr Llewellyn and Ms Wilkinson say they were concerned with assessing Ms Higgins' credibility. But Mr Llewellyn or Ms Wilkinson did not do all they could to obtain any information available as to these photographs (or at least the one photograph that was being shown to them), which were not only objectively important but were also regarded by the person they were interviewing as important (Ex 36 (at 0:13:12)).
805 What was done?
806 While the evidence was initially opaque, it became apparent the additional photograph referred to by Ms Higgins was never followed up on and instead was forgotten (T1512.30-31) and, as to the bruise photograph (Ex R222), it was "airdropped" by Ms Higgins to Mr Llewellyn's phone. That is, the photograph (not a screenshot) was airdropped to Mr Llewellyn's phone during the meeting (T1706.44-1708.38) but (for reasons not explained on the evidence) the airdropped photograph did not contain any metadata identifying when the original photograph was taken. Despite its importance, no attempt was made to obtain independent verification of when the original was taken.
807 Moreover, no attempt was made to ascertain how this corroborative document had survived in circumstances where Ms Higgins asserted that she had lost data from her phone.
808 In fairness, Ms Wilkinson was somewhat curious as to this general topic. A few days later, on 31 January, Ms Wilkinson and Mr Llewellyn exchanged the following messages on WhatsApp about the bruise photograph (Ex R203, 31 January 2021 (at 2:24:16pm)):
I want to zero in a little on this whole phone thing. Have a look at my questions I've just added. I need to know what Vodafone are saying about her phone going to black. And if she says she took screenshots of crucial messages she now no longer has, how come she still has the bruise shot? I'm confused on this point. And why she is delaying - or at least appears to be delaying - getting answers on that. Without raising alarm bells with her do you think you can ask her today or first thing tomorrow? It's a crucial point when it comes to further blocking of her being able to gather evidence.
809 Her confusion was understandable. But rather than this prompting further action, Mr Llewellyn responded (Ex R203, 31 January 2021 (at 3:09:29pm)):
No worries. Thanks. I'll talk to her. With no proof of my own though I suspect a stuff up more than anything else. My gut feeling is there's no covert monitoring or wiping of phones going on at all, it's just a stuff up. And my gut feeling is to avoid the topic as it raises unanswerable questions and weakens rather than strengthens her very strong claims by adding in unnecessary doubt where there currently isn't any.
(Emphasis added)
810 This exchange is telling for several reasons: (a) Mr Llewellyn does not address Ms Wilkinson's question as to the evident difficulty with Ms Higgins' account as to the bruise photograph; (b) Mr Llewellyn ignores and does not question Ms Higgins' prevarication or apparent prevarication in providing an explanation as to why she selectively retained some data; (c) notwithstanding the issues now raised as to the bruise photograph, the second photograph of the bruise has been forgotten; (d) a statement that my "gut feeling is there's no covert monitoring or wiping of phones going on" is not the same as immediately dismissing what was being said as to covert monitoring and remote deletion as a conspiracy theory (which was the impression Mr Llewellyn gave in his evidence); (e) importantly, why was Mr Llewellyn intent on ignoring matters which raise "unanswerable questions" and weaken or sow doubt as to an aspect of Ms Higgins' claims? And (f), equally importantly, why was this regarded as a satisfactory response, clearing up the confusion, by a journalist as experienced as Ms Wilkinson?
811 The only other evidence of a related enquiry made was at 1:18pm on 8 February 2021, when Mr Llewellyn sent a message - not to Ms Higgins, but to Mr Sharaz - saying (Ex R214):
Hi mate
A couple of non urgent questions for B. I don't want her having to wince when she sees a message from me so can I leave this up to you to find a good time to ask?
Any idea what date the photo of the bruise was taken?
812 Ms Higgins responded to the message a couple of hours later, departing from her earlier account and indicating that the photograph was taken a "[c]ouple of days after" the rape (a representation Mr Llewellyn had apparently forgotten), by saying (Ex R292): "I'm not sure on the exact date but it was taken in Parliament House during budget week (1st - 5th of April)".
813 Even leaving aside this particular inconsistency, going back to the making of the enquiry through Mr Sharaz, one would think that instead of being concerned that Ms Higgins would "wince" upon contacting her, Mr Llewellyn would be pressing Ms Higgins to explain the anomaly as to the retention of (apparently two) bruise photographs and the selected data already provided, a fortiori when she had already embraced a theory as to the deletion of all data, possibly by reason of an event Mr Llewellyn said he dismissed as nonsense.
814 Although I accept that phone problems, including loss of data, are not extraordinary occurrences, the submission that it is to "Mr Llewellyn's credit that he discounted a conspiratorial explanation for the phone problems, and to Network Ten's credit that they were not ventilated" fails to grapple with the point that this was a potential problem with Ms Higgins' reliability.
815 Network Ten also submits that "Mr Llewellyn accepted that Ms Higgins' explanation about the death of her phone and the retention of the bruise photograph was inconsistent" but that this is why Network Ten "obtained a statutory declaration from Ms Higgins" (T1519.4-8). Reliance is placed on the following evidence (T1517.32-35):
the only way we were going to use that - because of the lack of clarity, was whether we had a statutory declaration signed about that. Without that, we were unsure. Once the statutory declaration was there, we could use the photo. Otherwise, we wouldn't have used it.
816 But just before this answer, Mr Llewellyn had given the following evidence (T1517.11-21):
MR RICHARDSON: - - - Mr Llewellyn, did it occur to you to wonder why it was that Ms Higgins was making certain material available to you and other material was not available?---The premise in your question, saying that Ms Higgins was not making stuff available to me, I don't know if there's anything that says that she was not making anything available to me.
I want to suggest to you that the mere fact that she had supplied you with a handful messages and screenshots of emails attached to the timeline and the bruise photograph did not make her claims about the complete death of her phone any less strange?---Ms Higgins provided me with what she thought was relevant. That does not mean that I think things are relevant.
817 The submissions of Network Ten miss the point.
818 From the start, there was a failure to enquire into why Ms Higgins sought to add verisimilitude to her account by reference to curated contemporaneous material. Even though, according to parts of Mr Llewellyn's evidence, he says he recognised an inconsistency and Ms Wilkinson had evidently been confused, rather than this inconsistency or confusion prompting enhanced scrutiny, the approach was to rely on further uncorroborated representations in a statutory declaration as to the bruise photograph, which, when referred to in the statutory declaration (R532 (at [7]-[8])), did not address the selective retention of data, let alone why this particular photograph had survived the "wipe" (T711-712).
819 It is well at this point to reject two of Network Ten's submissions related to this point.
820 First, it was suggested that the absence of a contemporaneous transcript of the first meeting explains why Mr Llewellyn forgot or overlooked inconsistencies as to: (1) when the bruise photograph was taken; (2) whether there was another photograph; or (3) why only some data had been provided by Ms Higgins. But according to Mr Llewellyn, he did recognise some inconsistency and, in any event, any journalist acting responsibly in a first meeting of such importance would have taken extensive notes or listened to the audio file.
821 Secondly, Network Ten made the point, more than once, that the bruise photograph was adduced into evidence in Mr Lehrmann's criminal trial, even though there was no metadata available (Ex 67; T862.36-38) and the earliest version of the photograph was dated 19 January 2021 (Ex R883). In the light of this, it is said to be "perverse" if it were found that it was unreasonable for Network Ten to rely on the bruise photograph in its broadcast in circumstances where, "months later, and consistent with his obligations, the Director considered it reasonable and appropriate to put the photograph before the jury at Mr Lehrmann's criminal trial".
822 This submission does not withstand scrutiny, even if we assume the prosecution was conducted in a manner that could not legitimately involve criticism and there was a symmetry of information, in that the prosecutor appreciated all the inconsistences between retention of the one bruise photograph and the other information given to Mr Llewellyn and Ms Wilkinson during the initial meeting such as: entertaining a possibility there was a conspiracy to delete the data on her phone; the assertion of a complete wiping of her phone; and the existence of two bruise photographs.
823 Without objection, extensive extracts of the evidence of Ms Higgins at the criminal trial have been placed before me. Excerpts from the transcript (Ex 71 (at T128-9)) set out how the bruise photograph was adduced into evidence:
MR DRUMGOLD: Now I am going to show you a photo. Now what are we looking at there?---My outside leg, my left leg. Your outside left leg?---Yes, I believe so.
When did you take that photo?---It was the week of budget which was a week after the assault.
If this night was Saturday, the 23rd - the early hours of Saturday, 23 March - - -?---Yes.
- - - the next week started 25 March to 29 March. Is that the week you are talking about?---1 believe so, yes. I just remember it being the day before budget and I took a photo because it was still there and I - yes.
Do you - what sort of - well let me ask it this way, are you in a position to estimate how many days after the 23rd of - well, including 23 March how many days after that?---It would be around five.
Around five days.
HER HONOUR: Mr Prosecutor, could you just clarify, it is not clear to me and it might not be clear to the jury, whether what is shown is the inside of the thigh or the outside because the outside then the photograph, if it is the left leg, is in mirror.
MR DRUMGOLD: Yes.
HER HONOUR: If it is the inside, then it makes sense.
MR DRUMGOLD: Can we perhaps clarify, is that the outside or the inside of your leg?---If I was laying down it would have been - - -
MR WHYBROW: Object to that, your Honour. That is not the question.
MR DRUMGOLD: Perhaps it would - if I could ask the witness to stand and show on her leg where that bruise is, where that mark is.
HER HONOUR: Yes. Ms Higgins, you do not have to show your leg just on your clothing if you wouldn't mind, please?---Okay. Yes, of course. It looks like in that photo that it's taken on this leg but when I was assaulted I was pinned down on this leg so it looks like the bruise is more so on this side than this side.
Are you accepting that that photograph shows your right leg?---It does. It shows that leg, yes.
MR DRUMGOLD: Do you know when you sustained that bruise?---1 assume during the course of the assault.
Thank you. I will tender that photo, your Honour.
HER HONOUR: Exhibit F.
824 The following evidence was then given in cross-examination (Ex 71 (at T623-625)), demonstrating how the issue of the photograph became related to the issue of what Ms Higgins alleged she had told the AFP in 2019:
You have given evidence about a photograph of a bruise?---Yes.
You remember giving that evidence?---Yes.
Do you agree that you never mentioned that bruise or the photograph - two different things: the actual bruise, and the second thing is that you had taken a photograph of it. You didn't mention either of those things to the police officers on 1 or 8 April 2019? Sorry, I withdraw that; that's terrible. You took a photograph. I think from your statutory declaration you said that that photograph was taken on 3 April 2019?---Yes, that rings true.
In your evidence last week you said you took that photograph five days later. Do you accept that if you took it on 3 April, it would have been about 12 or 13 days after what you say happened on the night of the 22nd?---Yes. I just remember it being Budget week and the actual date itself I don't really recall specifically.
On - and I will break them down. When you spoke to Officers Thelning and Cleaves on 1 April, the first two ladies you spoke to - - -?---Yes.
- - - of 2019 - - -?---Yes.
- - - you didn't say anything about having a big bruise on your leg, did you?---Not that I recall to the police. Not at that point, no.
And on 8 April when you spoke to Detective Harman - you remember, from SACAT?---Yes.
Again, I suggest you didn't make any reference then to you having had a big bruise on your leg?---1 don't think that's true necessarily. They referenced keeping photos and the photos I think they were referring to were both the bruise and I took a stupid photo of a cocktail that I was drinking that night that I took a photo of that was like a Long Island Iced Tea joke because there was a teabag in a cocktail.
I suggest you didn't make any reference to having either had sustained a bruise on your leg to Detective Hannan on 8 April - - -?---No. I just answered that. I don't - - -
Did you make a reference to having sustained a bruise? Different to the photograph?---I believe so, yes.
And I want to suggest to you you made no reference to having taken a photograph of a bruise, and you have already given an answer to that?---I've already made reference - they asked me to give photos of those things, the drink and the bruise.
Is it your evidence that Detective Hannan specifically said, 'Please keep the photograph of the bruise'?---No, they said, 'Please keep any photos that are relevant', and I did.
I want to suggest that there is no reference - sorry, you didn't make any reference to anybody else before January '21 to having suffered a bruise on your leg?---1 don't believe that's true. I don't know who I would have particularly disclosed it to, but I think when I was relaying the events of the assault I think it would have come up.
I want to suggest to you the first reference that you make to having sustained a bruise is when you are speaking to Lisa Wilkinson and The Project in late January of 2020.
HER HONOUR: Just don't answer that question for a minute.
MR WHYBROW: Sorry. I might withdraw that question and put it in a different way.
HER HONOUR: Yes. I don't think you can put that.
MR WHYBROW: No, no, I will put it in a different way. I'll put a less broad proposition if I could?---Go for it.
You understand that on 25 May 2021 , the police, with your consent, done an extraction of things off your phone?---Yes. They took three of my phones and I had another three work phones I confirmed to them that existed, but they took stuff off all of them and they still have two of them.
And I want to suggest to you that on those extractions there is no reference to this bruise in messages or emails before January 2021?---I don't think I sent it to anyone. I sent it Samantha Maiden at one point, I sent it to Lisa Wilkinson, but up until the point in which I was making a police complaint why would I send that around?
I suggest that the photograph of the bruise and your assertion that it was an injury that occurred during this assault is a fabrication?---Okay, sure. I reject you completely.
Thank you, and that - - -
MR DRUMGOLD: I'm sorry, your Honour, but the question is unfair, I think. I think the proposition advanced by this witness was she assumed. I think that was the word that was used. My friend is putting it definitively. I think she used the word 'assumed'. I can find the reference.
HER HONOUR: Well, there are two things. There's a different basis on which I can think the question might have been objected to but it wasn't and the answer has come, and if that's the submission that's going to be put, if there's a proper basis for putting it, then the question should be allowed. I think I'll leave it where it lies, Mr Prosecutor.
MR DRUMGOLD: Thank you, your Honour.
MR WHYBROW: Excuse me one second, if I may, your Honour.
HER HONOUR: My concern, Mr Whybrow, so I'm not being too Delphic, is the basis for putting as opposed to asking, if I could put it that way, given that you can't know the whole universe of information about that topic.
MR WHYBROW: No. That's why- - -
HER HONOUR: But if you're going to make the submission - - -
MR WHYBROW: That's why I confined it to something else and there's other - - -
HER HONOUR: But you are going to make the submission that it's a fabrication based on inference.
MR WHYBROW: Yes.
HER HONOUR: I think I have to allow it, Mr Prosecutor.
MR DRUMGOLD: Yes, your Honour.
825 We do not, of course, know what prior steps the prosecutor took to attempt to clarify matters with Ms Higgins in conference. He may have sought a detailed explanation and received some form of assurance or some of the evidence adduced in cross-examination may have come as a complete surprise to him (a hardly novel occurrence). As can be seen from the terms of the prosecutor's objection based on "unfairness", he was understandably trying to embrace the notion Ms Higgins had not been definitive as to what the bruise photograph depicted (although this might have been thought a forlorn endeavour forensically given the terms of her statutory declaration, a review of all the answers given in chief - rather than just the ultimate one - and the definitive answers given earlier in the cross-examination).
826 It is beyond argument that the prosecutor's obligation was to present all available, cogent and admissible evidence: Nguyen v The Queen [2020] HCA 23; (2020) 269 CLR 299 (at 314-315 [36] per Kiefel CJ, Bell, Gageler, Keane and Gordon JJ). Ms Higgins had made definitive out-of-court representations, and the prosecutor was stuck with the reality of what had been said about the bruise photograph to the Project team. Given the defence also had these representations in the brief of evidence, the topic could hardly be ignored.
827 It is certainly easy to see why experienced defence counsel would seek to lock in what she had said about the bruise photograph on oath and then exploit accusations of recent invention of the bruise photograph and the existence of the bruise (allied to the broader topics of selective retention of data and inconsistences with what Ms Higgins had told the AFP in 2019) in an attempt to impeach the credibility of the complainant before the jury.
828 In these circumstances, from the perspective of the Crown, it might rationally be thought adducing evidence of the photograph in chief (which one ought to assume was a course open on the instructions received) would be the forensically preferable course to simply ignoring an important topic apt to be exploited in cross-examination.
829 The question of whether it was ethically open and prudent to adduce the evidence of the bruise photograph in chief at the criminal trial is separate to, and involves entirely different considerations from, the issues confronting the Project team when presented with the difficulties as to what Ms Higgins had first said to them about the bruise photograph and partial data retention.
830 It is tolerably plain what happened. The reason why insufficient scrutiny occurred as to these matters (which should have led to an informed assessment of Ms Higgins' general credibility) emerges from an objective review of the first meeting. From the get-go, all interactions are premised on the basis that what Ms Higgins was saying was true. It ought not be forgotten that prior to even meeting Ms Higgins, and only two days after receiving the first email from Mr Sharaz, Ms Wilkinson communicated to Mr Llewellyn that she had rung "Craig [Campbell, an Executive Producer] and Sarah [Thornton, the Network Executive Producer] and we're going huge with it" and that it would be a "March release" (Ex R117).
831 Although she was required to be dealt with sensitively, and even gently, and an empathetic and, at times, light-hearted approach was appropriate to build rapport, Ms Higgins' allegations were treated by Ms Wilkinson and Mr Llewellyn as a given.