Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/72

 244 In the witness box at this trial, she seemed irritated that the cross-examiner would challenge her on the photograph. But the evidence as to her inconsistencies on this topic are both important and vexing.

245 We know the original photograph, despite its obvious importance, was not mentioned or provided to the AFP in 2019. This is despite Ms Higgins meeting, a few days after the bruise photograph was supposedly taken, with highly experienced AFP sexual assault investigators sensitively asking her for any relevant information over a lengthy period in the presence of a sexual assault counsellor providing her with support (see [680] below). Further, the metadata of the original photograph has never been produced. The earliest record of a bruise or the photograph is in 2021 and, when this reproduction is examined, it shows a bruise on Ms Higgins' right leg, in circumstances where she gave evidence that Mr Lehrmann had "crushed" her left leg during the alleged rape (Ex 71 (at T128–129)).

246 What is equally odd are the singular circumstances by which Ms Higgins' phone was "completely wiped" and her photos had disappeared from her iCloud records (Ex 36 (at 0:05:56; 0:07:53–0:08:00)), and yet the bruise photograph and some other limited material survived, allowing it to be deployed by Ms Higgins and Mr Sharaz to lend verisimilitude to the account she gave to Network Ten.

247 I will go into further detail as to this topic below, but it suffices for present purposes to note that despite her evidence before me, I consider it unlikely there could be genuine confusion in Ms Higgins' recollection as to how she got the bruise recorded in the bruise photograph given the way she and Mr Sharaz deployed it in 2021 and their subjective understanding of its importance.

Selective Retention and Curation of Data

248 Nextly, and relatedly, was the missing messages, including one on the morning she left the Ministerial Suite with a security guard, Mr Alex Woods (with whom Ms Higgins had earlier matched on Bumble (T910.45)), and with Ms Hamer, Major Irvine, and Ms Gain – including, tellingly, Ex 47, being the deleted text message automatically saved separately in the "notes" section of the phone whereby Ms Higgins, on 27 January 2021 (and just after the five-hour conversation with Ms Wilkinson and Mr Llewellyn) sought to prompt Ms Gain as to the detail of Ms Higgins' narrative of what occurred in 2019 (T910–11; T925–6). Also missing Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369