The ACT government is considering changing a law which could come into place prior the retrial of former Liberal staffer Bruce Lehrmann after an “anomaly” was noted by the Director of Public Prosecutions.
Alleged victims of sexual assault are given the choice to give evidence in the courtroom or have it recorded in a remote witness room by audiovisual link.
However, only those who have chosen to have their evidence recorded in the remote room are allowed to have it resused in a retrial.
Those who choose to give evidence in person are faced with the prospect of having to face court again, something that’s described as a “structural cost” to witnesses, according to ACT Director of Public Prosecutions Shane Drumgold.
“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,” Mr Drumgold said in a letter to the ACT Attorney-General Shane Rattenbury.
“In other words, there appears to be a structural cost to a witness choosing to give evidence in a courtroom.”
The law could be changed before Bruce Lehrmann is due to face court again after the high profile rape trial was aborted earlier this year.
Chief Justice Lucy McCallum was forced to discharge all 12 jurors in the trial after an academic paper was found in one of their belongings.
Mr Lehrmann is accused of raping former Liberal staffer Brittany Higgins at Parliament House.
Mr Lehrmann, 27, has pleaded not guilty to sexual intercourse with Ms Higgins without her consent and being reckless to her consent in the early hours of March 23, 2019.
Ms Higgins opted to give the majority of her evidence in person in the initial trial, meaning she could be expected to have to face the courtroom again in the retrial if the law isn’t changed.
Mr Drumgold seeks an “urgent amendment” to the law, who argued that there “appears to be no rational reason to treat witnesses who give evidence in the courtroom differently”.
“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) [the law] appears an unintended penalty for witnesses, particularly sexual assault complainants who choose to give evidence in the courtroom,” Mr Drumgold said about the law.
The ACT Government has confirmed it is considering amendments to the Evidence Act after Mr Drumgold raised the “systemic omission” related to four cases.
“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 spokesperson said.
“A letter regarding the draft bill has been sent 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.”
The new trial is set for February 20 next year, with the ACT’s Legislative Assembly to sit in early February, meaning there is potential for changes to take affect beforehand.
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