The ACT government is pushing for urgent reforms to remove a loophole that prevents the use of video recordings of rape complainants’ evidence in retrials if, like Brittany Higgins, they initially gave evidence in the courtroom.
The territory usually allows for video recordings of rape complainants’ evidence to be replayed to juries in retrials, a feature which means sensitive witnesses are not re-traumatised.
But an omission in the law means video recordings cannot be replayed where a witness comes to court and gives evidence in person, as opposed to via video link. That’s despite the fact that the courts have the technology to record witnesses who give evidence in court.
In alerting the government to the problem last month, the office of the director of public prosecutions said it was an “unintended penalty for witnesses, particularly sexual assault complainants who choose to give evidence in the courtroom”.
Higgins gave evidence in person during the first trial of Bruce Lehrmann, which was aborted after juror misconduct. In the immediate aftermath of the trial’s collapse, it was believed a recording of her evidence could be played to the retrial.
Lehrmann has denied the allegations and pleaded not guilty to one count of sexual intercourse without consent.
The ACT government is now moving to reform the Evidence Act to allow video recordings to be used in cases like Higgins’. As first reported by the Australian, the government has begun contacting stakeholders, including representatives of the parties involved in Lehrmann trial.
The Guardian understands that the Lehrmann trial is one of four cases that has revealed the problem.
The timetable for reform is unclear. The bill would need to be put before a committee and is expected to be debated in next year’s sittings of the ACT legislative assembly.
The first sitting week begins on 7 February.
Higgins re-trial is set down for 20 February 2023.
Shane Drumgold, the DPP, wrote to the ACT attorney general, Shane Rattenbury, after the Higgins trial, notifying him of the flaw in the legislation and asking for urgent reforms.
“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,” he wrote.
“In other words, 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, [in person] again.”
Drumgold said there was “no rational reason” to treat witnesses who give evidence in the courtroom differently.
“The recording of evidence ensures that vulnerable witnesses are not re- traumatised in a subsequent proceeding, where possible,” he wrote. “Of course, the court retains the discretion to refuse to admit the recorded evidence to ensure fairness to the accused.”
An ACT government spokesperson said the omission was “procedural” and said the change would reflect the ACT government’s “longstanding commitment to reduce barriers to providing evidence in court proceedings, while maintaining fairness for an accused person”.
“A draft bill has been distributed to stakeholders for comment, including the lawyers for any parties this law change could affect,” he 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.”
