Former NRL star Jarryd Hayne has had his sexual assault appeal allowed and also been released on bail as he awaits a third trial.
The 33-year-old's criminal lawyers had argued that the Court of Criminal Appeal could have entered acquittals — however, the appeal decision did not go this far.
The sexual assault allegations centred on the night of the NRL grand final in 2018.
He had spent approximately nine months in jail prior to his release.
Sexual Assault Charges
The Crown case had alleged that Jarryd Hayne had been celebrating with friends in the area on a two-day buck's weekend.
He had been messaging a woman and the pair agreed that he would attend her house in Newcastle. He arrived at approximately 9pm on 30 September 2018 in a taxi.
Mr Hayne had the taxi wait outside for him while the pair had sexual intercourse, with Mr Hayne digitally penetrating her. The woman 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 Jarryd Hayne being charged with aggravated sexual assault.
First Two Trials
Prior to the Jarryd Hayne appeal, his first trial proceeded before a Newcastle District Court jury in 2020. The jurors were unable to reach a unanimous decision which resulted in a hung jury.
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 has 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."
During a sentence hearing in May he again reiterated his innocence, saying, "I didn't do it."
A detailed analysis of the first two trials by leading sexual assault lawyers can be found here.
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.
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".
Hayne's sexual assault lawyers said that Judge Helen Syme's directions of law were "flawed in almost every possible way".
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.
Chief Justice Tom Bathurst and Justices Helen Wilson and Ian Harrison delivered the Jarryd Hayne appeal decision. It was held that Judge Syme's directions were so flawed that it necessitated the appeal being allowed.
The Jarryd Hayne appeal was also allowed a second ground – that it was an error to overturn a ruling from the first trial regarding 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 Jarryd Hayne's criminal defence lawyers.
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. This means that it would have been open to the jury to accept the complainant's evidence, had adequate directions been provided.
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.
This related to what was described as a "highly prejudicial" outburst from the woman in the first trial when she yelled "no means no" under cross-examination. It was played before his second jury. It was argued that it was likely to bring about a "very sympathetic response" from the jurors, despite it having little probative value.
But the Crown argued the woman appeared very deflated and flat directly after this exchange, and her monotone responses would be incongruent without viewing the preceding moments.
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 not unusual. It is done to ensure the jury for any future trial is not prejudiced.
In the Court of Criminal Appeal, the majority view prevails so only two judges need to agree to allow the appeal.
Jarryd Hayne Bail
Jarryd Hayne was granted bail following his sexual assault appeal being allowed.
He appeared via videolink before Sydney's Downing Centre District Court on Tuesday, 15 February 2022 as his bail application proceeded before Judge Christopher O'Brien.
"Can you hear me?" Judge O'Brien asked.
"Yes," Mr Hayne replied.
Judge O'Brien on granted Mr Hayne bail on a number of conditions. The bail conditions include that Jarryd Hayne live with his wife Amelia Bonnici and a surety pay $20,000 security within the next seven days.
He will also be required to report to Merrylands Police Station three days a week and not contact the alleged victim or any witnesses.
He is also precluded from entering the Newcastle area.
When on bail previously, Mr Hayne had to report to police every day, surrender his passport and not leave his local area on the Central Coast, except for specific reasons.
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.
Jarryd Hayne Update
The court provided Jarryd Hayne an update as to when his trial is likely to be listed. The court was provided with an estimated trial length of 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.
His matter will be mentioned again on Friday, 18 February 2022 to fix a trial date.
As this is 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, it will be a distinct possibility.
