ACT passes law obliging prosecutors to reveal evidence following Lehrmann trial debacle

A new bill that obliges prosecutors to reveal all available and relevant evidence to court in criminal trials has been passed by the ACT Legislative Assembly (LA).

The legislation, the Crimes (Disclosure) Legislation Amendment Bill 2024, responds to a recommendation made from an inquiry into the flawed prosecution of former Liberal staffer Bruce Lehrmann, who was accused of raping colleague Brittany Higgins in the office of then Defence Minister Linda Reynolds at Parliament House in 2019.

The inquiry, conducted by retired judge Walter Sofronoff, was critical of the way prosecutors in the Lehrmann case handled witness evidence.

In particular, the inquiry report highlighted an email sent by Minister Reynolds’ chief of staff Fiona Brown to prosecutors that was not passed on to the defence.

In the email, Ms Brown accused Ms Higgins of making “false and misleading” statements in her testimony to court.

The chief of staff refuted Ms Higgins’ claim that she offered to pay her six weeks’ wages if she went to the Gold Coast during the election campaign and didn’t return to work for Ms Reynolds afterwards.

According to the inquiry report, Director of Public Prosecutions Shane Drumgold did not disclose the email to the defence and did not disclose the fact Ms Brown had contacted the prosecution.

“The failure to disclose the email, or even the fact it was sent, deprived the defence of [the opportunity to take this matter up with Ms Brown],” the report stated.

The inquiry recommended the ACT Government enact legislation to make it clear what prosecutors are obliged to disclose in criminal proceedings.

The Crimes (Disclosure) Legislation Amendment Bill, introduced by Attorney-General and Greens MLA Shane Rattenbury, turns that recommendation into law.

The bill was passed in early June after support by all members of the LA.

“This bill obligates the prosecution to submit all available evidence, including sensitive and private material, before the court,” Liberal MLA Peter Cain told the LA.

“It will introduce clearer rules on how evidence must be disclosed in criminal trials.”

He said it also allowed alleged victims to share with the courts the significance of the evidence disclosed and gave them an opportunity to respond to it.

“These reforms strike a careful balance between the rights of defendants and the needs of victims,” Attorney-General Rattenbury said.

The bill includes timeframes for disclosure to be forwarded to the defence. Failure to meet timeframes may result in fines or other sanctions against the prosecution.

The ACT Government supported 10 recommendations from the Sofronoff report, but this was overshadowed by the controversial leaking of the inquiry findings, which sparked yet another inquiry.

In May 2024, watchdog body the ACT Integrity Commission confirmed it was conducting an investigation into Mr Sofronoff for possible corruption in giving his report to journalists before handing it to Chief Minister Andrew Barr.

The Lehrmann trial was abandoned in October 2023 after it was discovered that a juror had conducted private research and taken their findings into the jury room. The case was dropped by Mr Drumgold three months later.

In a subsequent defamation trial initiated by Mr Lehrmann, Federal Court Judge Michael Lee ruled that, on the balance of probabilities, Mr Lehrmann raped Ms Higgins.