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?---I 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.
