The ACT Legislative Assembly is debating a motion that could impact the retrial of Bruce Lehrmann, who is accused of raping fellow former Liberal Party staffer Brittany Higgins.
Earlier today (24 November), Attorney-General Shane Rattenbury introduced new laws, which would allow evidence given by complainants in-person in a courtroom to be reused in a retrial.
Mr Rattenbury said his proposed changes to the Evidence Act would better help protect vulnerable witnesses.
Depending on the timing of their passing, they could impact Mr Lehrmann’s retrial, which has been set down for 20 February next year after the first attempt ended in a mistrial.
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The Territory’s current laws allow complainants in sexual violence and family violence matters to give their evidence from a remote witness room. This evidence is then recorded and can be used in a retrial.
But if a complaint chooses to give their evidence in person in the courtroom, it cannot be used again in the event of a retrial.
Ms Higgins gave her evidence in person.
Region understands her evidence was recorded but Director of Public Prosecutions Shane Drumgold wasn’t aware of this until 16 November, more than two weeks after he first wrote to Mr Rattenbury seeking a change in the legislation to correct the discrepancy.
Opposition Leader Elizabeth Lee has tried to refer the bill to a committee inquiry which would report back by the final sitting day of March next year.
She said the bill warranted the move.
“There is a significant concern about the bill insofar as it seeks to amend the Evidence Act and that proposal is a significant piece of law reform,” she said.
“That proposal warrants thorough inquiry, analysis, submissions and public hearings to enable the community to thoroughly understand the implication of those proposed changes.
“There is no doubt that this proposed change has been the subject of media inquiry already and there is no doubt there are various and very serious concerns … and a lot of public interest.”
It’s understood that even if Ms Lee’s motion fails, the bill will be referred to the Standing Committee on Justice and Community Safety but it will be able to decide whether or not it undertakes an inquiry.
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In presenting the bill, Mr Rattenbury confirmed the use of recording would not be mandatory and would only occur if the witness consented.
He said an accused who objected to the tendering of a witness’ recorded evidence given in the courtroom (if the first trial happened before the new laws) would be able to “make one or more applications relating to the potential impact of the amendments on their trial”.
Mr Rattenbury told the Assembly the amendment removed the structural cost to witnesses who chose to testify in person.
“This change will ensure that all vulnerable witnesses in these proceedings now have the right to have their recorded evidence admissible in subsequent related proceedings, limiting the potentially traumatic experience of having to give the evidence again,” he said.
It’s understood the Director of Public Prosecutions Shane Drumgold has written to the office of ACT Attorney-General to confirm no one had specifically requested the change in relation to the Lehrmann trial. Instead, the anomaly was raised by the DPP’s police/appeals unit after it was noted in four separate matters.