24 November 2022

Assembly debates new laws that could impact Lehrmann trial

| Lottie Twyford
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Shane Rattenbury

Attorney-General Shane Rattenbury has introduced proposed changes to the Evidence Act to the ACT Legislative Assembly. Photo: Region.

The ACT Legislative Assembly today began debate on laws that could impact the retrial of Bruce Lehrmann, accused of raping fellow former Liberal Party staffer Brittany Higgins.

The timing and importance of the reforms have already been called into question by the Opposition which characterised the proposed changes as “significant”.

This morning (24 November), Attorney-General Shane Rattenbury introduced new laws, which would allow evidence given by complainants in person in a courtroom to be used again in a retrial.

Mr Rattenbury said his proposed changes to the Evidence Act would better help protect vulnerable witnesses.

Depending on when they were passed, the changes could impact Mr Lehrmann’s retrial set down for 20 February next year after the first attempt this year ended in a mistrial.

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The Territory’s current laws allow complainants in sexual violence and family violence matters to give 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 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 significant concern about the bill in so far 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 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.”

But Ms Lee’s attempt failed.

2020-10-26 ACT Greens Legislative Assembly Photo: Michelle Kroll

ACT Greens crossbencher Andrew Braddock says the bill will be scrutinised. Photo: Michelle Kroll.

Instead, ACT Greens crossbencher Andrew Braddock this afternoon amended Ms Lee’s motion to require the committee to report back to the Assembly on the proposed laws within normal timeframes – by the end of January.

He told the Assembly the legislation would go through the normal process of being examined by the Scrutiny Committee, which he sits on, and would then follow the normal practice of going to the JaCS committee for “calm and careful” consideration of whether it required inquiry.

“Instead, with zero notice the Canberra Liberals have slapped down this request … with the purpose of publicly seeking attention and to appease their ideological masters at The Australian newspaper,” he told the Assembly.

Mr Braddock’s amendments were supported by the government.

Mr Rattenbury said he was surprised by Ms Lee’s remarks on Thursday morning and said he was “sceptical” that it needed four months of inquiry rather than the usual two.

“It does not become an earth-shattering amendment just because you speak it into being,” Mr Rattenbury said.

“It is a simple piece of law reform.”

But Ms Lee rejected that characterisation, saying it would entirely change how evidence tendered in court was viewed.

She also accused Mr Rattenbury of having given stakeholders only 48 hours of notice to examine the amendments.

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In presenting the bill on Thursday morning, 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 occurred 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 wrote 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.

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This case is getting curiouser and curiouser.

A paper In Sydney today has advised the ACT Supreme court will hear a secret application in regards to this court case.
The application will be heard on Tuesday the 2nd of December.
Media and the public will be unable to attend and the hearing will be subject to a non-publication order.

Eventually someone’s gunna write a great book about all of this.

The timing of this should only effect new cases before the courts. Changing this to be retrospective breaks the separation of powers doctrine.

The whole idea is having 3 separate government bodies with some not all of the power. If this is undermined by rushing laws than that separation is undermined and corrupted.

In a retrial the complainant is free to make new claims but when doing recalled evidence can avoid being called on the stand.

The whole need for a re-trial is because there wasn’t enough supervision of jury members and the process. Shane should look to fix that than to try and influence trials.

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