News Criminal Law

By Claire Boulter


Jarryd Hayne: Guilty or Not Guilty?

Last week, this former NRL star’s name re-entered the media with a heated resurgence. In case you haven’t been following the last six years of legal proceedings, Jarryd Hayne, the rugby player, was accused of sexually assaulting a woman in her home in Newcastle on the evening of the 2018 NRL grand final.

But why are we still talking about Hayne six years later?

After serving nearly 14 months in custody, Hayne’s sexual assault convictions were quashed by the NSW Court of Criminal Appeal. The Director of Public Prosecutions (“the DPP”) is now looking to re-try Hayne. If Hayne is retried, this will not be the second time Hayne is tried. Nor will it even be the third. This potential re-trial will be the fourth time that Hayne is tried on precisely the same allegations.

Understandably, many are questioning whether a fourth trial is truly genuinely in the public interest.

Why have there been so many trials?

Following the initial allegations, Hayne stood trial in December 2020 on two counts of aggravated sexual intercourse without consent and, in the alternative, two counts of sexual intercourse without consent. After years of preparation, including all the legal costs and psychological stress that comes with a trial, the result was a hung jury. The jurors could not reach a consensus on whether Hayne was guilty or not guilty of the alleged offences in light of the evidence.

Although hung juries are pretty rare, they are not completely unheard of. According to the NSW Council for Civil Liberties, approximately 1.9% of trials in the NSW District Court result in a hung jury. Where this occurs, the prosecution must decide whether to seek a retrial or drop the charges.

In Hayne’s case, the matter was sent for re-trial. After Hayne’s second trial in 2021, he was found guilty of the two alternative counts of sexual assault. However, this outcome is far from the end of the story. In February 2022, Hayne appealed against both findings of guilt on the basis that the Judge had given erroneous directions to the jury regarding a critical legal test. Ultimately, his appeal was successful. Hayne’s convictions were quashed, and a new trial was ordered. This third trial would consider facts identical to those of the previous two trials.

By this point, the proceedings are becoming repetitive and laborious. But bear with me.

Hayne’s third trial commenced on 13 March 2023. For a second time, Hayne was found guilty of sexual assault and taken into custody, where he has remained for the last 14 months.

However, on 12 June 2024, Hayne successfully appealed these convictions. This time, the appeal was allowed on the basis that the trial judge had erred in rejecting Hayne’s application so that the complainant could give further evidence. According to Justice Sweeney, one of the judges who upheld Hayne’s appeal, the trial judge’s decision meant that “the jury were deprived of evidence which had significance for their assessment of the honesty of the complainant”. This resulted in a miscarriage of justice. Painstakingly, a fourth trial was ordered.

So, this is where we find ourselves today. While the DPP appears resolute in their bid to secure a final conviction, the rest of us are left asking: what is the point?

The “Public Interest” Argument

Justice Sweeney says that putting Hayne on trial for a fourth time “would not be in the interests of justice”.

Admittedly, the concept of the “public interest” is vague. It often requires balancing the public utility of securing a conviction against the additional time and costs associated with further proceedings. In Hayne’s case, it is worth considering that he has already served a significant period in custody. Thus, while a fourth trial may finally end proceedings, the outcome is unlikely to generate much practical difference.

Without a doubt, the ability of our legal system to order retrials in situations of error serves a very important function. However, in Jarryd Hayne’s case, the legal system has arguably gone too far. Over 6 years, 36 jurors have spent weeks agonising over evidence and attempting to reach a verdict. Each of these jurors has been paid with public funds. Further, the costs associated with prosecuting any matter are exorbitant. To prosecute the same matter multiple times is a huge burden on the limited public resources the justice system has available to it, a burden which the public inadvertently bears the brunt of; not to mention the cost to Mr Hayne, who, it appears, has been well-represented at each stage of these proceedings and his legal fees are likely to have been approaching (if not exceeding) $1million.

Moreover, the lack of certainty associated with ongoing, changeable outcomes calls into question the competence of the legal system. In a system that already struggles with huge backlogs, we cannot afford to run matters that genuinely lack reasonable prospects of success.

How likely is a fourth trial?

According to Justice Rothman, another of the judges who upheld Hayne’s most recent appeal, there is “good reason for there not to be a fourth trial”. One of those reasons is that Hayne’s non-parole period is due to expire in less than 12 months. Justice Rothman states “It is unlikely that a new trial will occur before the expiry of the non-parole period”.

But ultimately, it is a decision for the prosecution. Most importantly, it is a decision the prosecution must make in line with the Prosecution Guidelines. Whichever way the decision falls, it is likely to be met with resounding criticism. Let’s just hope this is the final time we will be hearing of it.

Hayne’s matter is next in court on 26 July 2024, and we expect the prosecution to give an official indication regarding whether or not the matter will proceed to its fourth trial.

Serious criminal allegations such as the ones levelled against Mr Hayne require expert legal representation. If you or one of your loved ones is facing serious criminal allegations, get in touch with the expert criminal law team at Aulich Criminal Law