A change to allow recorded evidence to be used in ACT retrials could be made in time for the retrial next year of Bruce Lehrmann, who is accused of raping Brittany Higgins.
Attorney-General Shane Rattenbury is expected to introduce amendments to the Evidence Act later this month. A draft bill was circulated to stakeholders on Thursday.
The proposed change has been floated following correspondence from the Director of Public Prosecutions Shane Drumgold SC to Mr Rattenbury.
In a letter seen by The Canberra Times, Mr Drumgold said it was the view of his office the "anomaly" required "urgent amendment".
The Director of Public Prosecutions sent the letter on October 31 - just three days after Lehrmann's trial was aborted, following the declaration of a mistrial brought about by the misconduct of a juror.
Under current ACT laws, complainants in sexual violence and family violence matters can give their evidence from a remote witness room.
This evidence is recorded and can be used again in the event of a retrial.
However, a complainant can choose to give their evidence in-person in the courtroom but this cannot be recorded or reused in any retrials.
Ms Higgins gave her evidence in-person. It is understood her evidence was recorded.
Mr Drumgold writes in his letter there was no "rational reason" for witnesses who give evidence in-person to be treated differently.
"There appears to be a structural cost to a witness choosing to give evidence in a courtroom... in that in the event of a retrial, they do not have the right... to have their recorded evidence made admissible in the subsequent retrial, thus forcing them to give evidence, viva voce again," he said.
"The recording of evidence ensures the vulnerable witnesses are not re-traumatised in a subsequent proceeding, where possible.
"Of course, the court retains the discretion to refuse to admit the recorded evidence to ensure fairness to the accused."
An ACT government spokesman said the "systemic omission" was brought to the government's attention by Mr Drumgold. The spokesman said the issue had arisen in four matters, including the Lehrmann trial.
If the bill is introduced it would not be debated until 2023. Lehrmann's retrial is scheduled for February 20, 2023.
The ACT Legislative Assembly is expected to sit for the first time in early-February, prior to the retrial.
However, the bill could only be debated in February if the standing committee for Justice and Community Safety did not choose to undertake an inquiry into the bill.
"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 spokesman said.
"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."
