Jarryd Hayne’s Successful Sexual Assault Appeal: The Reasoning Behind the Judgment

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by Paul Gregoire and Ugur Nedim

Former Rugby League football star Jarryd Hayne stood trial three times in the District Court of New South Wales accused of sexual assault offences alleged to have been committed in 2018. After the first jury was ‘hung’, meaning it could not reach a verdict, he was twice found guilty, and twice successfully appealed the verdicts.

The allegations

The conduct in question was alleged to have ocurred between 9:07 pm and 9:53 pm on 30 September 2018, while Hayne was at the Newcastle home of the 26-year-old female complainant. He was later charged with sexual assault for allegedly performing cunnilingus and having digitally penetrated the vagina of the woman without consent.

The complainant had initially contacted Hayne via a messaging app on 17 September. Since then, they’d been sending messages of the nature she described as “flirty-type sexual-type stuff”.  And the Sydney man then turned up at her house prearranged as he was in the region attending a party.

Hayne was in the woman’s bedroom, when the taxi driver waiting outside knocked on the door of the house, and her mother answered. The woman alleges that Hayne, on return to her room, pulled down her pants and performed the acts, as she struggled against him and repeatedly said “no”.

The defence case rests on the acts being consensual, as the communications prior to it demonstrated a sexual interest, as did her agreeing to the visit. And Hayne has explained he stopped the acts when he tasted blood. He then washed in the bathroom sink and took the taxi to Sydney.

Third time round

A NSW District Court jury last year found Hayne guilty of two counts of sexual assault, or sexual intercourse without consent, contrary to section 61I of the Crimes Act 1900 (NSW). And this is an offence that carries up to 14 years imprisonment.

Section 61HA of the Crimes Act defines sexual intercourse as penetration of genitalia or anus by any part of the body or an object, introduction of any part of genitalia into the mouth of another, or the application of mouth or tongue to female genitalia.

During the first two trials, Hayne was charged with two counts of aggravated sexual assault, contrary to section 61J of the Crimes Act, due to the actual bodily harm caused during the act, while the two counts of sexual assault were back up charges.

In May 2021, a jury found Hayne not guilty of aggravated sexual assault but guilty of sexual assault. However, the NSW Court of Criminal Appeal (NSWCCA) overturned these convictions in 2022, based on problematic directions given to the jury by the trial judge, and it ordered a retrial.

And following the delivery of guilty verdicts against two counts of sexual assault by a jury on 4 April last year, NSW District Court Judge Walker Turnbull sentenced Hayne to 4 years and 9 months prison time, with non-parole set at 3 years.

Missing communications

Hayne then appealed against his fresh convictions to the NSWCCA on 3 April this year. And he did so based on three grounds. The first ground involved the jury’s verdicts being unreasonable or not supported by the evidence.

The second was that Judge Turnbull had made an error in finding it not “necessary in the interests of justice” to allow the woman to give evidence in regard to a Monique Smiles and Stephen Page and that a miscarriage occurred when she was prevented from providing more evidence about Smiles.

Prior to Hayne’s visit, the woman had been messaging Smiles and Page that day. She’d asked Smiles if she shouldn’t have turned down an invitation to the party that he’d extended, while she’d also been asking Page to visit her, and as he wasn’t interested, she suggested she’d see Hayne instead.

The woman gave a number of accounts to different people regarding what occurred while Hayne was at her house. And one that appeared to be inconsistent with the others had been made to Smiles, soon afterwards. Yet, this was over the app Snapchat, and it automatically deletes messages.

Smiles told the court that the incident was explained to her in a manner that described the sexual activity but not as if it had been forced or caused injury.

After the incident was reported in late 2018, police took possession of the woman’s phone, in which some of the exchanges with Hayne had been deleted. And at this time, she didn’t mention Smiles to police, and her phone no longer contained the messages with Smiles or Page regarding Hayne. 

So, the communications between the woman and Smiles and Page weren’t established until around the time of the 2020 trial, when NSW police first became aware of them, after the footballer’s lawyers drew the attention of detectives to them.

And on 29 November 2021, the day of the appeal against the second trial verdicts, the woman had been in contact with Smiles and Page’s flatmate.

The woman had turned up at Page’s home to find he was not there, and after officers arrived at the scene, they recorded her as stating, “If those messages get out, I’m fucked, and he will get off”

Fourth trial, likely

For the third trial, Hayne’s lawyers submitted to the court that the woman should be called back in for questioning in regard to her interactions with Smiles and Page, especially in terms of some of her behaviour that suggested she might have been concealing evidence.

As NSWCCA Justice Stephen Rothman explained last week, the trial judge had refused to give Hayne the opportunity to examine the woman regarding the new material and her failure to disclose these communications with Smiles and Page.

His Honour then explained that Judge Turnbull had decided not to call the woman into court as she would merely answer that she’d forgotten these points, which was problematic as it assumed a response, and it should have been up to the jury to assess the woman’s answers and demeanour.

But more importantly, Justice Rothman explained, it was unfair of the judge to infer that the prosecution could put this version of events to the jury, but then further instruct the jurors that they couldn’t assume such a position as the woman had no chance to respond to these claims.

So, for these reasons, his Honour upheld grounds two and three. However, he did consider it was possible for the evidence before the court at the time to have led to the jury finding Hayne guilty of the two charges, so he dismissed the first ground.

NSWCCA Justice Deborah McSweeney upheld all three grounds of appeal, whilst Justice Roddy Meagher found all three grounds were not made out.

On ordering that the convictions be quashed and a retrial held on 12 June this year, Justice Rothman remarked that as it will be a fourth trial, there was good reason not to have ordered a retrial, however he added whether to go ahead with a it is a matter for the Crown to decide at its discretion.

And his Honour further noted that the reason that he had ordered a retrial was due to the ground of unreasonable verdict not having been made out.

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