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.
