It is possible, but unlikely, that a potential move to change a law relating to retrials in the ACT could be implemented before the second trial of Bruce Lehrmann, which is scheduled to begin early next year.
The first ACT Supreme Court trial of Mr Lehrmann, who is accused of raping Brittany Higgins in Parliament House, unexpectedly ended with its jury discharged in late October 2022, and a retrial was set for February 2023.
In the days afterwards, Director of Public Prosecutions Shane Drumgold SC wrote to Attorney-General Shane Rattenbury regarding what he said was an “anomaly” in the Evidence Act 1991 that “requires urgent amendment”.
National media reporting today (17 November) has suggested that the amendment would be implemented to take effect specifically for the Lehrmann retrial and therefore constitutes an attempt to prevent consultation with relevant legal bodies and other stakeholders before implementing a significant change.
However, the amendment is currently a draft only and must be debated in the Legislative Assembly before passing into law.
Region has been told that the amendment will be debated in 2023. The first sitting week of the ACT Legislative Assembly in 2023 is 7 to 9 February, the next is not until late March, while the Lehrmann retrial in the ACT Supreme Court is currently scheduled for late February.
Unless the debate was scheduled as the primary order of business when the Assembly resumes for its first three days in the new year, it’s unlikely the amendment could be passed in time to affect the retrial’s progress.
Under current laws, evidence a witness gives over an audio-visual link in alleged sexual assault cases is recorded and can be used in a retrial.
But if a witness has chosen to give their evidence in the courtroom in person, they are not allowed to use it in a retrial and must provide it again.
“There appears no rational reason to treat witnesses who give evidence in the courtroom differently,” Mr Drumgold said.
He asked for an “urgent amendment” so witnesses who choose to give evidence in the courtroom can have it recorded and used in a retrial.
An ACT Government spokesperson confirmed the government was considering amendments to the Evidence Act after Mr Drumgold “raised this systemic omission, having arisen in four matters”.
“This proposal reflects the ACT Government’s long-standing commitment to reduce barriers to providing evidence in court proceedings while maintaining fairness for an accused person,” the spokesperson said.
“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.”
Mr Lehrmann, 27, has pleaded not guilty to a charge of sexual intercourse without consent and is on bail.