Law change could see Brittany Higgins not take stand in Bruce Lehrmann retrial

Brittany Higgins could avoid taking the witness stand a second time if a change to a specific law is passed.

The ACT Director of Public Prosecutions Shane Drumgold is seeking “urgent” legal changes that could allow Brittany Higgins to avoid taking the witness stand a second time.

The changes would mean evidence Ms Higgins gave in court could be played to a jury in a retrial, potentially avoiding the prospect of her being cross examined again in a second rape trial. The proposed changes are outlined in correspondence obtained by news.com.au.

The changes centre on what happens if a sexual assault complainant gives evidence in open court – as Ms Higgins did – and not through a remote video link that can be recorded and played to the jury at a retrial.

It would allow that evidence to be played to the jury in the same way it would be if the evidence was recorded from a remote location, ensuring that the complainant is not forced to give evidence a second time.

It’s not clear, however, whether the changes would be finalised in time to be relevant to the retrial which is currently scheduled for February, 2023.

Brittany Higgins leaves court on October 27 after the jury in the trial was discharged. Picture: NCA NewsWire / Gary Ramage

But Ms Higgins has expressed her shock at proposed reforms today dismissing claims by The Australian’s columnist Janet Albrechtsen that the changes “may as well be called Brittany’s law” and undermine the rule of law.

“Brittany’s law? Come on. This is literally the first time I am hearing about any of this,’’ she said on Instagram.

“But sure, go off at me in the national broadsheet.”

Ms Albrechtsen wrote in The Australian newspaper today that the “hasty” change means Ms Higgins might not return to court.

“The ACT Attorney-General plans to change the law that will likely apply to the retrial of Bruce Lehrmann scheduled for February,’’ she wrote.

“This proposed amendment may as well be called Brittany’s law.”

ACT Director of Public Prosecutions Shane Drumgold. Picture: NCA NewsWire / Gary Ramage

After a trial that ran for 12 days and following five days of deliberation by the jury, Chief Justice Lucy McCallum discharged the jury last month after an allegation of juror misconduct and set down a retrial in February.

In his letter to the ACT Government, the DPP does not expressly mention the trial of Bruce Lehrmann but states that “in the case of a retrial, the power to rely on the recorded evidence is limited to where a relevant witness does not elect to give evidence in the courtroom”.

This was the choice that Ms Higgins made in the recent rape trial of Bruce Lehrmann. She chose to give evidence in person, in the courtroom, in front of the jury, rather than remotely via video link.

Mr Lehrmann pleaded not guilty and denies any sexual activity took place at Parliament House in 2019.

“There appears no rational reason to treat witnesses who give evidence in the courtroom differently,’’ Mr Drumgold writes in the letter.

“The recording of evidence ensures that vulnerable witnesses are not re-traumatised in a subsequent proceeding, where possible. Of course, the court retains the discretion to refuse to admit the recorded evidence to ensure fairness to the accused pursuant to s 69(4),’’ Mr Drumgold wrote.

“I have confirmed that there is no technological barrier to recording both visually and audibly when giving evidence in a courtroom, so the limitation in s69(1) appears an unintended penalty for witnesses, particularly sexual assault complainants who choose to give evidence in the courtroom.

“We seek an urgent amendment to section 69, in the removal of the limitation to witnesses who give evidence via audiovisual link under s68, to include witnesses that choose to give evidence in the courtroom under s68(3).”

The letter is dated October 31, 2022, just days after Chief Justice McCallum discharged the jury in the trial of Bruce Lehrmann.

Bruce Lehrmann and defence lawyer Steve Whybrow on October 27 after the jury in the trial was discharged. Picture: NCA NewsWire / Gary Ramage

In a statement, the ACT Attorney-General Shane Rattenbury confirmed the changes were under consideration.

“The ACT Government is considering amendments to the Evidence (Miscellaneous Provisions) Act 1991, after the Director of Public Prosecutions raised this procedural omission,’’ Attorney-General Shane Rattenbury said.

“This proposal reflects the ACT Government’s longstanding commitment to reduce barriers to providing evidence in court proceedings, while maintaining fairness for an accused person.

“A draft bill has been distributed to stakeholders for comment, including the lawyers for any parties this law change could affect.

“If the Bill proceeds, we expect it would be debated in the 2023 parliamentary sittings, to allow for the usual time taken for a Committee to consider proposed legislation.”

If this change is progressed by the Government, it would not take effect until the legislation has been debated and passed by the ACT Legislative Assembly, and therefore may not be finalised in time to be benefit to the retrial.

In an email obtained by The Australian, sent on Wednesday morning by Robyn Hakelis, executive branch manager of legislation, policy and programs in the ACT Attorney-General’s Department, to the ACT Bar Association, the ACT Law Society the official confirms that the ACT Attorney-General is planning to change the Evidence Act.

The ACT Bar Association also recently wrote to the ACT women lawyers association to complain about a speech by the ABC journalist Louise Milligan discussing the cross examination of rape victims.

Mr Lehrmann’s lawyer Steve Whybrow declined to comment on today’s developments.