Criminal Law Law Updates

By Minuri Dharmasena

21.11.22

A quick job, not a good job: ACT evidence laws could change before Bruce Lehrmann’s retrial

The ACT Government is pushing for urgent amendments to evidence laws in the ACT. The amendments would allow the Office of the Director of Public Prosecutions (the DPP) to obtain audio-visual recordings of evidence given by complainants of sexual offences, who chose to give evidence in person in the courtroom, and to rely of those recordings in any related proceeding (for example, a retrial).[i] Whilst the rationale behind the amendment – to protect and avoid retraumatising complainants – is commendable, the manner in which the amendment is being rushed through is somewhat concerning and raises an uncomfortable question: why the rush? Is all this so the DPP can “get” Bruce Lehrmann?

Background

On Wednesday morning, the ACT Attorney-General reached out to the ACT Bar Association, ACT Law Society and other stakeholders for feedback on a proposed amendment to the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act) (the Draft Bill). The stakeholders were not provided with any explanatory memorandum or compatibility statement, which conventionally accompany such requests for feedback.[ii]

The Draft Bill proposes to amend section 69 of the EMP Act to allow evidence given by complainants of sexual assault in the courtroom during one trial to be recorded and admitted as evidence in a second trial. It will be introduced to the ACT Legislative Assembly in just over a week, on 28 November 2022, and is expected to come up for debate by as early as 7 February 2023.[iii]

Notably, the Draft Bill is a consequence of a letter from the Director of Public Prosecutions, Mr Shane Drumgold SC, who led the charge in trial of Mr Lehrmann (if you have been living under a rock and are unaware of the details of that case, you can read my colleagues’ articles here and here). On 31 October 2022, just days after the dismissal of the jury in that case, Mr Drumgold wrote to the ACT Attorney-General urgently requesting the amendment. Mr Drumgold wrote:

“There appears no rational reason to treat witnesses who give evidence in the courtroom differently.’’[iv]

“In other words, there appears to be a structural cost to a witness choosing to give evidence in a courtroom.”[v]

“The recording of evidence ensures that vulnerable witnesses are not re-traumatised in subsequent proceeding, where possible.”[vi]

The existing law

At present, the EMP Act provides that:

  1. Certain vulnerable witnesses (like complainants of sexual offences) must give evidence by audio-visual link, [vii] that is, where the witness can be heard and seen.
  2. However, under section 68(3) of the EMP Act, a vulnerable witness who prefers to give evidence in person in the courtroom (instead of by audio-visual link) can ask the Court to make an order allowing them to do so.[viii]
  3. Evidence given by audio-visual link must be recorded as an audio-visual recording,[ix] and the recording is admissible as that witness’s evidence in any related proceeding, unless the Court orders otherwise.[x]
  4. Evidence given in person in the courtroom need not be recorded, although there is no express provision preventing it from being recorded.
The amendment

The Draft Bill will amend the EMP Act so that, if the Court allows a vulnerable witness to give evidence under section 68(3) of the EMP Act, that evidence must also be recorded (with the witness’ consent), and that recording will be admissible in any related proceeding.

In principle, the amendment seems perfectly sensible. It will patch up the laws around giving evidence in the ACT so that vulnerable complainants who opt to give evidence in the courtroom are not prejudiced by that decision in the event of subsequent proceedings. For example, a complainant of a serious violent offence may wish to give evidence in person during the initial trial so they can confront the defendant and tell their side of the story to the jury, directly. It may be a cathartic experience, but it may also be exhausting, emotional and retraumatising. They may not wish to relive that experience if, for some reason or another, they are required to give the same evidence in a related proceeding (for example, a retrial, a trial for another offence arising from the same circumstances, or a civil proceeding arising from the offence).

Unfortunately, the manner in which the Attorney-General’s office is attempting to make the amendment is problematic.

  1. Firstly, there has been very little community engagement. Experts and stakeholders have been given just over one week to provide the Attorney-General with their thoughts and feedback on the Draft Bill. This timeframe cannot possibly be sufficient to properly canvass and consider the range of views people are likely to have on the issue.
  2. The Draft Bill does not specify how the recordings will be obtained, the position of the camera in the courtroom, the quality of the recordings or who would be captured – would it record the witness alone or would it include the other parties and/or the entire courtroom?

When evidence is given from a remote audio-visual link, a witness is seated immediately in front of the camera and are framed appropriately so their upper torso and face can be clearly seen.  This is important because it allows those viewing and analysing the witness’ evidence (most likely a jury) to properly consider the witness’ demeanour.  That opportunity is lost (or at least considerably eroded) with a poor-quality audio-visual recording or a recording of the evidence from further away.

  1. The Draft Bill provided to stakeholders was also missing an explanatory memorandum. An explanatory memorandum would explain what provisions in the Draft Bill mean, and what the Draft Bill is attempting to achieve. It would provide important context for interpreting, understanding and providing a response to the Draft Bill.
  2. The Draft Bill provided to stakeholders was not accompanied by a compatibility statement.

A compatibility statement is a requirement under section 37 of the Human Rights Act 2004 (ACT), according to which the Attorney-General must prepare a written statement about the Draft Bill for presentation to the Legislative Assembly,[xi] stating whether, in the Attorney-General’s opinion, the Draft Bill is consistent with human rights, and if it is not consistent, how it is not consistent.[xii]

On the face of it, the amendment in the Draft Bill is likely to affect the defendant’s right to examine prosecution witnesses, or have them examined, and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as prosecution witnesses.[xiii] It is also likely to affect the defendant’s and other parties’ (for example, Counsel, solicitors, media and others in the courtroom) right to privacy,[xiv] as their words and behaviour may also be recorded with the witness’ evidence.

Presumably, the Attorney-General will provide the Legislative Assembly with his compatibility statement on 28 November 2022, when he presents the Draft Bill. However, it would have been helpful for stakeholders to be provided with a similar document, particularly given the impact the amendment is likely to have on defendants’ and other parties’ rights.

  1. Finally, the Draft Bill is being rushed through at the request of the DPP, with very little feedback from the community. Shortly after Chief Justice McCallum of the ACT Supreme Court dismissed the jury empanelled in the trial of Bruce Lehrmann, the complainant, Brittany Higgins spoke to the media. The tone and content of her prepared statement appeared to indicate she would not be willing to give evidence in person at any retrial. A few days later, the Director for Public Prosecutions wrote to the Attorney-General seeking this urgent amendment. These circumstances have caused many to ask – why the rush? Does the ACT Government wish to pass the Draft Bill into law before 23 February 2021 (when Mr Lehrmann’s retrial is scheduled to begin[xv]) just so that the DPP can proceed with the retrial even if Ms Higgins refuses to give evidence again? Is that the reason the DPP has asked for this amendment to be rushed through?  Surely, if that was the case, that would be inappropriate.
The retrial of Bruce Lehrmann

Now for the real reason you are here … what does the amendment mean for the Bruce Lehrmann’s retrial?

During the trial, Ms Higgins asked to give her evidence in the courtroom, as she was entitled to do under section 68(3) of the EMP Act. At the time, there was no provision that required her evidence to be recorded as an audio-visual recording. Witness’ evidence in person is not usually recorded as audio-visual recordings and, to my knowledge, there was no order requiring such a recording to be obtained. I expect that, in accordance with the usual practice in courtrooms across Australia, Ms Higgins’ evidence was recorded as an audio-only recording for the purposes of preparing a transcript.

If the DPP hopes that the amendment in the Draft Bill will enable them to rely on the audio-only recordings in Mr Lehrmann’s retrial, they would be sorely mistaken. The amendment specifically provides that only audio-visual recordings would be admissible in related proceedings. Although the term “audio-visual recording” is not defined in the EMP Act, the ordinary and contextual definition of that term would require that the witness can be heard and seen at the other places. Audio-only recordings would not fall within this definition and should not be admissible as they lack a visual component that would allow the jury empanelled in the retrial to see and pick up on important visual cues from the witness.

If there is an audio-visual recording of Ms Higgins’ evidence and the DPP attempts to adduce those during the retrial, it would generate further questions. Did Her Honour authorise the recording? Did Ms Higgins know of and consent to the recordings? Were the other parties, including the Defendant and his representatives, notified they were being audio-visually recorded and was their consent obtained?

If the Court did audio-visually record Ms Higgins’ evidence during the first trial, the quality of that recording and whether or not it adequately captures her demeanour whilst giving evidence will need to be closely examined by the parties involved and decisions made whether there should be an application to exclude it.  There may well be a powerful argument for its exclusion should it further erode the ability of Mr Lehman to get a fair trial.

 

[i] Dominic Giannini, ‘ACT reviews sexual assault evidence laws’, The Canberra Times (online, 17 November 2022) < https://www.canberratimes.com.au/story/7985820/act-reviews-sexual-assault-evidence-laws/>; ‘ACT reviews sexual assault evidence laws ahead of Lehrmann retrial’, The Sydney Morning Herald (online, 17 November 2022) <https://www.smh.com.au/politics/federal/act-reviews-sexual-assault-evidence-laws-ahead-of-lehrmann-retrial-20221117-p5bz6e.html>; Kristin Shorten and Janet Albrechtsen, ‘ACT Government rushes to amend Evidence Act ahead of second Bruce Lehrmann trial’, The Australian (online, 17 November 2022); Janet Albrechtsen, ‘Hasty law change means Brittany Higgins might not return to court, The Australian (online, 17 November 2022); Elizabeth Byrne, Law stopping alleged victims of sexual assault reusing evidence in court could change before Bruce Lehrmann retrial, ABC News (online, 17 November 2022) <https://www.abc.net.au/news/2022-11-17/act-law-reusing-evidence-alleged-sexual-assault-lehrmann-higgins/101665808>; Christopher Knaus, ‘Bruce Lehrmann retrial: ACT government seeking to urgently reform video evidence loophole’, The Guardian <https://www.theguardian.com/australia-news/2022/nov/17/bruce-lehrmann-retrial-act-government-seeking-to-urgently-reform-video-evidence-loophole>.

[ii] Janet Albrechtsen, ‘Hasty law change means Brittany Higgins might not return to court, The Australian (online, 17 November 2022).

[iii] Ibid; Christopher Knaus, ‘Bruce Lehrmann retrial: ACT government seeking to urgently reform video evidence loophole’, The Guardian <https://www.theguardian.com/australia-news/2022/nov/17/bruce-lehrmann-retrial-act-government-seeking-to-urgently-reform-video-evidence-loophole>.

[iv] Elizabeth Byrne, Law stopping alleged victims of sexual assault reusing evidence in court could change before Bruce Lehrmann retrial, ABC News (online, 17 November 2022) <https://www.abc.net.au/news/2022-11-17/act-law-reusing-evidence-alleged-sexual-assault-lehrmann-higgins/101665808>.

[v] ‘ACT reviews sexual assault evidence laws ahead of Lehrmann retrial’, The Sydney Morning Herald (online, 17 November 2022) <https://www.smh.com.au/politics/federal/act-reviews-sexual-assault-evidence-laws-ahead-of-lehrmann-retrial-20221117-p5bz6e.html>.

[vi] Ibid.

[vii] Section 68(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

[viii] Section 68(3) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

[ix] Section 69(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

[x] Section 69(3) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

[xi] Section 37(2) of the Human Rights Act 2004 (ACT).

[xii] Section 37(3) of the Human Rights Act 2004 (ACT).

[xiii] Section 22(2)(g) of the Human Rights Act 2004 (ACT).

[xiv] Section 12(a) of the Human Rights Act 2004 (ACT).

[xv] Elizabeth Byrne, Law stopping alleged victims of sexual assault reusing evidence in court could change before Bruce Lehrmann retrial, ABC News (online, 17 November 2022) <https://www.abc.net.au/news/2022-11-17/act-law-reusing-evidence-alleged-sexual-assault-lehrmann-higgins/101665808>; Christopher Knaus, ‘Bruce Lehrmann retrial: ACT government seeking to urgently reform video evidence loophole’, The Guardian <https://www.theguardian.com/australia-news/2022/nov/17/bruce-lehrmann-retrial-act-government-seeking-to-urgently-reform-video-evidence-loophole>.