Former NRL star Jarryd Hayne has had his sexual assault appeal allowed and has also been released on bail as he awaits a third trial.
The 33-year-old’s criminal lawyers had argued that the NSW Court of Criminal Appeal could have entered acquittals — however, the appeal decision did not go this far.
He had spent approximately ten months in jail prior to his release.
Sexual assault charges
Mr Hayne had been messaging a woman and the pair agreed that he would attend her house in Newcastle. He arrived at approximately 9 pm on 30 September 2018 in a taxi.
Mr Hayne had the taxi wait outside for him while he digitally penetrated the woman. She claimed that it was "forceful and rough" and left her injured.
The former NRL star has always maintained the encounter was consensual and that any injuries caused were accidental.
The complainant alleged that she never consented to sex, leading to Hayne being charged with aggravated sexual assault.
The first two trials
In 2020, Hayne’s first trial proceeded before a Newcastle District Court jury. The jurors were unable to reach a unanimous decision.
He was then subjected to a retrial in Sydney, where he was found guilty of two counts of sexual intercourse without consent.
Jarryd Hayne was sentenced to jail for five years and nine months, with a non-parole period of three years and eight months.
He had been serving the sentence in Cooma Correctional Centre.
Mr Hayne appealed the conviction immediately after he was sentenced. Speaking to media after the verdict, he said:
“I‘d rather go to jail knowing I spoke the truth than be a free man living a lie.”
Jarryd Hayne appeal decision
The Jarryd Hayne appeal decision was based on the trial judge giving the jury "flawed" directions.
Barrister Tim Game SC put forward four appeal grounds including that the jury was given 'profoundly wrong' legal directions. This was based on the jury directions containing words such as “might” and “may”, which was not an accurate reflection of the legal principles the jurors were required to rely on.
These directions are provided to the jury by the judge at the end of a trial and provide guidance on how to apply the law.
Crown prosecutor Brett Hatfield admitted the language could have been tighter, but argued that “perfection is not required”.
Chief Justice Tom Bathurst and Justices Helen Wilson and Ian Harrison delivered the decision. They held that the directions were so flawed that the appeal must be allowed.
A second ground was also successful: that it was an error to disallow the complainant’s messages with another person being admitted into evidence.
These messages explained the complainant’s state of mind in her “abiding interest in having sex with Jarryd Hayne”, according to Mr Game SC.
Two other appeal grounds were dismissed. Firstly, that the complainant’s evidence was so inconsistent that it was unreasonable for the jury to find Mr Hayne guilty.
The second appeal ground dismissed was an argument that it was an error to allow the jury to view the complainant’s “outburst” from the first trial.
The written reasons of the Jarryd Hayne appeal decision will be published once the case has concluded in the District Court. Specialist criminal lawyers in Sydney explain that this is not unusual. It is done to ensure the jury for any future trial is not prejudiced.
Jarryd Hayne's bail
Jarryd Hayne was granted bail following the appeal being allowed.
Judge O’Brien granted Mr Hayne bail on a number of conditions, including that he live with his wife Amelia Bonnici and pay a surety of $20,000 within the next seven days.
In determining whether to grant bail, a Court must determine whether there are any ‘bail concerns’ present.
Under Section 17 of the Bail Act 2013 (NSW), a bail concern is a "concern" that if you are granted bail, you will:
- Fail to appear at any future court proceedings; or
- Commit a serious offence; or
- Endanger the safety of victims, individuals or the community; or
- Interfere with witnesses or evidence.
Given he had been on bail for a significant amount of time previously with no breaches of bail, it was not surprising to experienced bail application lawyers that his release application was successful.
Jarryd Hayne was released from Cooma Correctional Centre on the afternoon of 15 February 2022.
What are the next steps?
The Court provided Jarryd Hayne an update as to when his trial is likely to be listed. The trial is estimated to take two to three weeks.
Judge O’Brien said that the trial could go ahead as early as October 2022, though it might not begin until 2023.
As this is a sexual assault case, the complainant will not have to give evidence at the retrial. Rather, her evidence from the first trial was recorded and it will be replayed, subject to any parts that are objected to.
In some circumstances the Director of Public Prosecutions (DPP) can decide to discontinue proceedings, however, this appears unlikely at this stage.
However, should Jarryd Hayne’s next trial end in another hung jury, the DPP withdrawing the charges will become a distinct possibility.
Avinash Singh is the Principal Lawyer of Astor Legal and is listed by the Law Society as an Accredited Specialist in Criminal Law.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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