ACT Government rushes to amend Evidence Act ahead of second Bruce Lehrmann trial
The ACT DPP has asked the territory’s government to amend the Evidence Act, which could make it easier to prosecute Bruce Lehrmann over the alleged rape of Brittany Higgins.
The ACT Director of Public Prosecutions has asked the territory’s government to amend the Evidence Act in a move that could make it easier to prosecute Bruce Lehrmann over the alleged rape of Brittany Higgins when his retrial starts in February.
As a result of the request, the ACT government is rushing to amend section 69 of the act to allow evidence given by a complainant in the courtroom, rather than a remote witness room, to be recorded and deemed admissible in a “related matter” such as a retrial.
The law change would allow alleged victims in sexual and family violence proceedings who give evidence in open court to have their original testimony recorded and reused in the event that the trial is aborted before a verdict is reached.
At present, a witness’s evidence given by audiovisual link must be recorded and would be admissible in a related proceeding, unless the court in that later proceeding decides otherwise, but evidence given in the courtroom is not recorded or admissible in a retrial.
Legal sources believe this abrupt law change is intended to assist the DPP in Mr Lehrmann’s retrial because it would free Ms Higgins from testifying again – or even attending – when the matter returns to the ACT Supreme Court.
Ms Higgins declined to comment on Thursday but said on social media that she was unaware of the proposal.
“This is literally the first time I’m hearing about any of this,” she posted to Instagram after news broke of the possible law change.
An ACT government spokesman on Thursday told The Australian that DPP Shane Drumgold – who ran Ms Higgins’s case – recently raised the “procedural omission” with Attorney-General Shane Rattenbury after it had arisen in four matters.
While the DPP did not respond to questions, one of those four matters is suspected to be that of Mr Lehrmann, whose rape trial was aborted in October because of juror misconduct.
Mr Rattenbury’s proposed law change – being rushed through the ACT parliament – will be introduced on November 28 and debated by the Legislative Assembly when parliament sits next year.
This means the draft bill could be passed before Mr Lehrmann’s retrial starts on February 20.
Ms Higgins has accused Mr Lehrmann of raping her inside a ministerial office at Parliament House in the early hours of March 23, 2019.
Mr Lehrmann has pleaded not guilty to sexual intercourse without consent and being reckless as to whether Ms Higgins had consented.
During Mr Lehrmann’s first trial, Ms Higgins opted to deliver most of her evidence-in-chief in person in the courtroom rather than from a remote witness room by audiovisual link.
The 27-year-old used the remote witness room only during the first part of her evidence in which her police record of interview was played to the jury.
If the proposed changes to legislation are passed, Ms Higgins’s in-court evidence will be admissible during Mr Lehrmann’s retrial, freeing her from attending court or facing another cross-examination by Mr Lehrmann’s defence team.
“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 spokesman said. “A draft bill has been distributed to stakeholders for comment … If the bill proceeds, we expect it to be debated in parliamentary sittings to allow for the usual time taken for a committee to consider proposed legislation.”
The prospective amendments are relevant to the admissibility of video recorded (in court) evidence in “related proceedings” that take place after the amendments commence.
When Mr Lehrmann’s trial was aborted on October 27, Ms Higgins delivered an emotional speech outside the Supreme Court in which she did not indicate whether she was willing to testify at the retrial.
Mr Lehrmann’s barrister Steven Whybrow SC declined to comment, as did Mr Drumgold and the ACT Bar Association.
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