Criminal Law

By Charlene Chalker-Harris


Jarryd Hayne’s Third Trial: When is Enough Enough?

The Allegations

Ex-rugby league star, Jarryd Hayne, has had his name splashed across the news for years following two allegations of sexual assault.  He was first accused of sexual assault in 2015 while he was playing in the NFL in the US.  San Jose police began investigating in May 2016 when a woman alleged Mr Hayne took her back to his apartment from a bar in California and raped her.  The woman said she had kept quiet until then, believing that victims of professional athletes were “discredited and blamed” for their assaults.  The allegation became public in 2017, and while there was insufficient evidence to lay criminal charges, the civil claim was reportedly settled out of court for nearly $100,000.00 despite Mr Hayne maintaining his innocence.

A year later, in 2020, Mr Hayne was charged with sexually assaulted a woman on the night of the 2018 National Rugby League (NRL) grand final.  These criminal charges are the subject of this post.  Mr Hayne is alleged to have assaulted the woman, then aged 26 years, by forcibly engaging in cunnilingus and digital penetration of her without her consent, leaving her bleeding from her genitalia.

The alleged assault followed a period of 13 days in which the pair had been communicating over social media, before finally meeting in person on the day of the alleged assault.  The Court heard that the messages exchanged in the lead up to their meeting had included sexually suggestive content, however the complainant made a conscious decision not to engage in sexual activity with Mr Hayne when she realised he was keeping a taxi waiting outside her house while they went inside.

The complainant stated that Mr Hayne initially went straight into her bedroom, before watching some of the NRL grand final in the lounge room and then returning with her to her bedroom where he tried to kiss her and remove her jeans.

The complainant recalled the encounter as being ‘forceful and rough’ and said Mr Hayne only stopped when they noticed blood on the bedding.  In text messages exchanged after the encounter, the complainant wrote “I know I’ve talked about sex and stuff so much, but I didn’t want to do that after knowing the taxi was waiting for you.”  The complainant reportedly told a friend she had told Mr Hayne to stop but “kind of just let it go because he was so into it and pushy.”

The Defence

Ever since the allegations were first raised, Mr Hayne has maintained his innocence.  He stated that the acts the pair engaged in on that night were consensual, an assertion which was supported by his comments in a private Snapchat conversation that police intercepted without Mr Hayne’s knowledge.  Mr Hayne argued that the injury caused to the complainant was completely accidental, reportedly telling a fellow player that he had told the complainant his fingernail must have ‘clipped’ her and that she ‘wigged out’ over the waiting taxi.

The Court heard that the expert medical evidence about the presence of a genital injury to the complainant “cannot imply whether consent had been given or had been absent.”  Mr Hayne’s barrister told jurors that Mr Hayne believed the complainant was consenting to the activity they engaged in and had no idea his actions would cause injury.

History of the Criminal Proceedings

Mr Hayne’s matter first went to trial in December 2020.  The jury in Mr Hayne’s first trial was unable to reach a verdict, resulting in a hung jury and a retrial being ordered.  Mr Hayne was re-tried in March 2021.

The jury of that second trial found Mr Hayne guilty of both counts of sexual intercourse without consent and in May 2021, Judge Helen Syme convicted Mr Hayne of two counts of sexual intercourse without consent and sentenced him to a maximum of five years and nine months’ imprisonment, with a non-parole period of three years and eight months.  In her reasons for decision, Judge Syme noted that she sentenced Mr Hayne on the basis that he had been fully aware that the complainant was not consenting, but went ahead anyway.

Days later Mr Hayne lodged an appeal against this decision, citing four grounds of appeal.  He was ultimately successful in this appeal, with the New South Wales Court of Criminal Appeal quashing Mr Hayne’s convictions for both charges and ordering a retrial.  Mr Hayne applied for bail and on 15 February 2022, being his 34th birthday, he was released from Cooma Correctional Centre.

Grounds of Appeal and Directions to a Jury

Of the four grounds of appeal, two were successful and two were dismissed.  One of the successful grounds was that the judge wrongly overturned a ruling from the first trial allowing messages exchanged between the complainant and another person, which explained the complainant’s “abiding interest in having sex with Jarryd Hayne”, to be admitted into evidence.

The other successful ground of appeal was that there were errors in the directions given by the trial judge to the jury before they were sent out to deliberate, with Mr Hayne’s appellate barrister Tim Game SC stating that the legal directions were “flawed in almost every possible way”.

Directions to a jury are given by the judge, after the jury has heard all the evidence and the closing arguments of both sides, to explain the law.  These directions include a summary of fundamental principles such as that the prosecution bears the onus of proving each element of the alleged offence beyond a reasonable doubt and that the accused is entitled to the presumption of innocence, as well as explaining the elements or the ingredients of the offence, including the mental element.  In this case, Mr Hayne argued that the judge’s directions to the jury included words such as ‘might’ and ‘may’ rather than ‘beyond reasonable doubt’, which clouded the critical legal principles the jurors were required to rely upon.

The Third Trial

Prosecutors have recently indicated that the Crown will be proceeding with yet another trial despite the significant cost and other considerations.  The third trial will be heard in October 2022 at the earliest or, failing that, in 2023.  The Court has been advised of Mr Hayne’s intention to apply for his third trial to be heard in Newcastle, rather than in Sydney.  That application will be heard on 21 March 2022.

While awaiting his third trial, Mr Hayne’s bail conditions include a surety of $20,000.00, the requirement that he surrender his passport and report to police three times a week, as well as conditions prohibiting him from contacting the complainant and any prosecution witnesses.  His bail conditions also prohibit him entry into the Newcastle local government area which will obviously need to be revisited if his third trial is to be heard in Newcastle.

When is Enough Enough?

It has been a long, drawn out process for all involved, with additional delays unfortunately arising from COVID-19 in addition to the numerous trials and appeals.  There is no doubt that considerable stress and distress has been suffered on both sides, both by those directly affected and by those supporting them.  Regardless of your personal views about what you think happened it shouldn’t be overlooked that while Mr Hayne continues to benefit from the presumption of innocence, he personally bears the financial burden each time the Crown decides to proceed with another retrial.  Meanwhile, the Crown’s expenses are funded by the State and by taxpayers’ money.

While Mr Hayne’s nest egg may be larger than yours or mine, there are people just like you and me facing similar situations, throwing tens, or even hundreds of thousands of dollars at their legal defence, with no way to get that money back even if the prosecution is dropped or they are acquitted.

Then, of course, there is the time lost.  When Mr Hayne was released from gaol on 15 February 2022, he had served just over nine months in custody.  Mr Hayne is defending charges which he has vehemently denied from the beginning and yet regardless of the outcome of his third trial, he will never get the time he spent in custody, away from his young family, back.  Whether you believe the time or the money is the greater loss, it is easy to see there are no winners at this stage.