At the heart of Jarryd Hayne’s successful appeal against his sexual assault convictions was a line of questioning his defence team was blocked from pursuing at his trial.
On Wednesday, a 2-1 majority of the NSW Court of Criminal Appeal found the former footballer’s lawyers should have been allowed to question the complainant about her interactions with two witnesses, and whether she deliberately concealed evidence.
Jarryd Hayne outside the NSW District Court last year, and a mockup of messages between the complainant and a friend.Credit: Sydney Morning Herald
The messages
During Hayne’s trial – his third, following a hung jury the first time and a successful appeal the second time – District Court judge Graham Turnbull rejected a defence bid to cross-examine the complainant about social media messages she sent to a woman on the day of the alleged assault on September 30, 2018, and in its aftermath.
The woman who received the messages gave evidence that after 10pm on September 30 the complainant messaged her on Snapchat words to the effect of Hayne “went down on” her and “it was really rushed”, but did not say it was non-consensual.
In November 2018, after Hayne was charged, the complainant messaged the woman again on social media and asked: “Do you still have the conversation we had that night?
“I think we wrote something about JH joking around but remember I spoke to you afterwards and told you what happened? Do you still have that conversation?”
The woman replied that she did not because it was sent on Snapchat.
“Oh ok ... I sorted it out and spoke to the police. I don’t need to give them your name,” the complainant replied.
Ultimately, the woman contacted Hayne’s lawyers.
Justice Stephen Rothman, one of the judges who decided the appeal in Hayne’s favour, said “the credibility of the complainant was the most important issue in the trial” and the judge should have allowed her to be cross-examined on this issue.
What police knew, and when
The officer in charge of the investigation, Detective Inspector Eugene Stek, gave evidence during the trial that he did not become aware of the complainant’s messages with the woman until May 2020. Hayne’s first trial started in November that year.
Detective Inspector Eugene Stek, pictured in May last year.Credit: Nikki Short
The final message, sent by the complainant to the woman on Facebook on November 29, 2021, the day of Hayne’s first appeal, said: “The pain I have endured from all of this is unfathomable … If he gets out you can thank yourself.”
Hayne’s third trial also heard that messages between the complainant and a man in the hours before the incident with Hayne – in which she said that “[if] we aren’t going to keep talking, I’m going to say yes to Jarryd” visiting her – were only revealed when that man approached Hayne’s lawyers.
The court heard the woman later told the man’s flatmate on the day of Hayne’s first appeal to “tell [him] he just f----d me with the appeal”, and told police that “if those messages get out I’m f----d and he will get off”. The trial judge also refused the defence leave to cross-examine the complainant about those comments.
Complainant’s credibility
The majority of the appeal court found the judge should have allowed the complainant to be cross-examined about her communications with the woman, including the Facebook message on November 29, 2021, and views conveyed that same day about her messages with the man.
“Those matters were significant to the credibility of the complainant, which was the critical issue in the trial,” Justice Deborah Sweeney said in her reasons.
“The evidence of the complainant’s not disclosing to police or the Crown her communications with [the woman] ... and her views expressed on 29 November 2021 about [the woman’s] evidence and the messages with [the man], had the capacity to demonstrate consciousness by the complainant that the evidence of her communications with those witnesses did not support her account of the events the subject of the charges.”
Most of the complainant’s evidence in the third trial had been recorded during Hayne’s first trial and was played to the jury.
The judge’s direction
During his summing up to the jury, the trial judge referred to the defence team’s submission that the complainant had lied and said that “[in] relation to lies, I’m going to give you a direction.”
He said the jury “just want to be a bit careful” in assessing allegations such as those related to “deletions from the phone”, and said that they would want to consider whether that was “fairly put and fairly arises”.
“It is not a consistent notion that you can just make that allegation without having given the opportunity to the person to answer whether or not, for example, they were mistaken, they were confused, they didn’t understand the position, and so forth,” the trial judge said.
Miscarriage of justice
The majority of the appeal court found the combination of the judge’s refusal to allow the defence questions and the judge’s direction to the jury about “lies” led to a miscarriage of justice.
“By not permitting counsel to cross-examine the complainant on those topics and then telling the jury that in considering the submission that the complainant had lied about matters including deletions from her phone, they should consider whether that was ‘fairly put’, this created an unfairness in the accused’s trial,” Sweeney said.
Sweeney said that “[the] whole tenor of [defence] counsel’s submission to the jury was that by concealing from the police her interactions with [the woman and the man], the complainant was not presenting an honest account of what had occurred on the relevant night.”
Unlikelihood of fourth trial
It is not impossible that Hayne will stand trial for a fourth time, and the appeal court ordered a new trial. But it appears unlikely.
The state’s top prosecutor will make that decision and is yet to make a call.
The two judges who decided the appeal in the former footballer’s favour both suggested a fourth trial was undesirable. Sweeney said it “would not be in the interests of justice”.
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