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 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

Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369