Will DPP move for third trial against NRL stars Jack de Belin and Callan Sinclair?
Two hung juries, three shattered lives, where to now? There will need to be exceptional circumstances to hold a third trial over rape allegations against NRL stars Jack de Belin and Callan Sinclair.
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Will NRL star Jack de Belin stand trial over rape allegations for a third time? The multimillion-dollar question will ultimately come down to the call of the state’s Director of Public Prosecutions Lloyd Babb SC and his deputies.
But it will not just be a gut feeling call.
Two hung juries and the possibility of a third trial is an extremely rare situation.
But the Office of the DPP has guidelines that set out what must be considered when deciding to prosecute for a third time.
Under the NRL’s “no-fault stand-down policy”, de Belin, 30, a high-profile player for the St George-Illawarra Dragons, has not played a game since he was charged in December 2018.
De Belin and Shellharbour Sharks player Callan Sinclair are accused of raping a woman at a North Wollongong unit during a night out in December 2018.
Since then, two trials in the District Court have resulted in divided jurors unable to reach agreement on whether the two men are guilty or not.
Asked this week if Mr Babb had come to a decision, an ODPP spokeswoman said: “No decision has been made concerning whether the matter will proceed to a further trial. A decision will be made before the matter is next in court.”
ODPP insiders were more clear in telling The Saturday Telegraph that a third trial was unlikely, but not impossible.
The main reason for a third trial not happening was because of the circumstances where two juries were divided, with little reason to believe a third set of jurors would be any different — making it a pointless exercise.
One insider said: “There is absolutely 99.99 per cent chance that they will not do it again — not after two hung juries.”
Another had a different view.
“Officially, the ODPP is only concerned with applying the law. But this is an extremely high-profile matter, and to be seen to be dropping the case could be interpreted as backing down, so it might be run again anyway.”
During the last court appearance, after the second jury were discharged, Crown Prosecutor David Scully SC told Judge Nicole Noman SC that the ODPP would consider its position and update the court on whether a third trial would occur when the matter next appeared in court, on May 28.
Until then, let’s take a look at what Mr Babb will have to consider.
According to the ODPP’s Prosecution Guidelines, it is a simple equation and comes down to one factor.
“Where two juries have been unable to agree upon a verdict, a retrial will be directed only in exceptional circumstances,” the guidelines say. “Any such direction must be given by the Director or a Deputy Director.”
It sounds simple, but there are some complexities when it comes to “exceptional circumstances”.
So what are they?
EXCEPTIONAL CIRCUMSTANCES
Exceptional circumstances is a conveniently broad term and no definition is given in the prosecution guidelines.
But one DPP source said there were three major factors when considering if exceptional circumstances exist.
The first is: Is there new and compelling evidence to warrant hearing the case again?
“But we’re not talking small meaningless evidence,” the source said. “It has to be new and compelling evidence that could push the jury to a decision in either direction.
“If not, there is no point going to all the cost of hearing the case again if it’s going to be a hung jury again,” the source said.
The second factor considers the reason why the jurors could not come to a decision in the first two trials.
This supports an argument for de Belin not standing trial a third time.
“If the juries were discharged for reasons other than they couldn’t come to a unanimous decision, this could be considered as an exceptional circumstance,” the ODPP source said.
“(Examples would be) If jurors were discharged for researching things on the internet or if one of them was sick — it goes to if there is a possibility that the jurors could reach a decision and didn’t get the chance,” the source said.
The third factor is whether the jury was close to reaching a unanimous decision in one or both of the earlier trials.
In these cases, they weren’t.
Towards the end of the second trial, Judge Noman asked the jury if they were close to a majority verdict.
This means the jury could be allowed to declare a verdict if there was an 11-1 split between what the jurors thought the verdict should be.
Usually, the courts require all 12 jurors to agree on the verdict.
The jury informed judge Noman that this was not the case, indicating that the jury was divided and could not even come to a majority verdict.
From a legal perspective, it supports the argument for not running the case again, the DPP source said.
“Twice the jury couldn’t agree — and there is nothing to suggest anything will change if they go for a third time,” the source said.
COSTS IN THE MILLIONS
The other elements that will come up for consideration are the public interest and the cost to both accused to run the trial a third time — and whether either can be justified.
Both are simple considerations, and weigh up the benefits of what will be achieved through a third trial, as well as the cost to the public purse and both footballers.
On the public side of it, the costs will include the resources used for the trial that include a crown prosecutor for another two-week trial, their solicitors, the time allocated for the judge to hear the case and everything down to the court that will be used.
“The question will be: Is a third time for the case more important than the other cases the lawyers could be working on, that the judge could be hearing and that the courtroom could be used for?” the DPP source said.
For de Belin and Sinclair, the case would have come at a huge financial cost to hire lawyers to defend them and — particularly for de Belin — the amount of money he has lost by not playing for the St George-Illawarra Dragons.
So is it fair that they have to pay again?
This needs to be weighed up against the likelihood that the jury will reach a verdict.
One defence lawyer estimated that de Belin — who has retained David Campbell SC to defend him — would be closing in on $1 million for his court costs.
So far, de Belin has retained barristers and solicitors to defend him for two criminal trials — the last of which ran for 2½ weeks — and his challenge to the Federal Court of Australia against the NRL’s no-fault stand-down policy.
“To give you a picture, his barrister would cost anywhere from $7000 to $10,000 a day and his solicitors would likely charge $3000 to $4000 a day,” the criminal lawyer said.
“And there is also preparation time that needs to be paid for if I was doing this trial,” the lawyer said. “I did a similar trial and charged for a week of prep time because that is how long you need to spend examining the material to defend someone.”
Given the way the cases have played out, there is next to no chance that the court could order the ODPP to pay De Belin and Sinclair’s legal fees.
In short, if a case goes spectacularly badly for the prosecution, the judge can make an order that the ODPP pay the legal costs of the accused.
But the DPP source said this would not happen.
“The fact that there has been two hung juries means there was a prima facie case,” the source said. “You don’t get costs orders in lineball cases.”
A prima facie case means there was enough evidence to justify prosecutors bringing a case to court.
“But this needs to be weighed up against the idea that you can’t just keep pounding an accused with trial after trial,” the DPP source said.
THE ALLEGED VICTIM AND THE POLICE
The DPP will also consider the opinions of the alleged victim in the case and the police when making the decision about a third trial.
One of the primary considerations is the mental health of the woman.
Will it be damaging to her psychologically to expect her to give evidence, in what can be a combative environment, for a third time?
Or should a recording of her evidence from the first two trials be played to a jury in the third trial to avoid this?
But if it is just a recording from two cases where two juries could not decide, is there any expectation that a third jury would come to a different decision to the first two?
The police are also key stakeholders in that they collected all of the evidence used to prosecute the case, so they need to have a say.
Police close to the case said they believed a third trial was unlikely because of the inevitable extra trauma the alleged victim would face.
The high-profile case had also taken its toll on other prosecution witnesses.
But they stressed no decision had been made and it was still on the “discussion table” and being considered very carefully.
Ultimately the final decision lay with the DPP, police said.
The alleged victim declined to comment.
THE NOT GUILTY CHARGES
At the conclusion of the second trial, the jury found de Belin and Sinclair were not guilty of having non-consensual anal sex with the complainant.
The jury was unable to reach a decision on the other four other charges relating to the alleged sexual assault.
So how does this affect the possibility of a third trial?
Not well, according to the DPP insider.
“The argument against a third trial was heightened that the jury could agree on the anal count — and that they were not guilty,” the insider said.
According to the ODPP’s prosecution guidelines, “Where a jury has reached a verdict on some charges but is undecided on others”, certain factors need to be considered when deciding if another trial should be run.
They are “the seriousness of the remaining charges” and “the sentences the accused has received for the other charges”.
ONE NOT GUILTY CHARGE
To some observers, it may seem unusual that de Belin and Sinclair could be found not guilty of charges they anally raped the complainant but that the jury could still be undecided on charges relating to the rest of the alleged sexual assault.
According to one criminal defence lawyer, this is because each of the charges de Belin and Sinclair face relate to individual and specific acts that allegedly occurred.
“In this case, you’ve got to have the physical element — the act — and the mental element — the intent to do it,” the lawyer said. “If it occurred accidentally and there was no intent the person can’t be guilty of the offence.”
The evidence in the case appeared to back this theory.
In court, the complainant agreed she was facing de Belin with her back to the wall and claimed he turned her legs to the side and deliberately tried to penetrate her other orifice.
“And that’s when I screamed ‘stop’ because it really hurt,” the woman told the court.
Asked by Crown Prosecutor David Scully what happened next, she replied: “He took it out.”
“Did he say anything?” Mr Scully continued.
“I think he said ‘sorry’,” she responded.
De Belin gave a similar account and gave evidence that “(I) accidentally prodded my penis inside … the wrong hole”.
“I could tell she grimaced and it wasn’t pleasant and said ‘oh’. I said ‘sorry’,” he told the court.
De Belin told the court “I asked her if she could help a brother out” and she guided him from there before the sex resumed, the court heard.
JUDGE ALONE TRIAL
If the trial was to be heard in front of a judge alone without a jury, it would be up for de Belin and Sinclair’s legal teams to argue for it.
This has not occurred so far.
AFFIRMATIVE CONSENT
Rape trials can live or die on the issue of consent.
A complainant alleges she did not consent and the accused ought to have known that, while the accused argues she actually was consenting, or that he had a reasonable belief in consent.
There is no obligation for the accused to give evidence, so the focus falls on the alleged victim to explain what she did or didn’t do to articulate her lack of consent.
In de Belin’s case, the complainant spent more than three days in the witness box answering questions in minute detail about her actions that night.
Did she look fondly into de Belin’s eyes? Why was she seen laughing with De Belin and Sinclair after the alleged assault if she really was raped?
A jury’s task in deciding whether there was no consent and whether the accused had no reasonable grounds for believing there was has been likened to mental gymnastics.
There is the legal definition of consent and then trying to decide what the accused’s state of mind was at the time.
On top of that, there are the judge’s directions that a jury must take on board during deliberations and their own assessment of the alleged victim’s credibility.
It is estimated less than 10 per cent of all sexual assaults reported to NSW Police result in finalised charges in court.
All of these factors have sparked calls to reform the state’s consent laws and to give the very small number of survivors who make it to court a better chance at justice.
The Saturday Telegraph, supported by Rape and Sexual Assault Research and Advocacy, is calling for NSW to adopt an affirmative consent model. That would mean a person does not consent if the person does not say or do anything to communicate consent.
We are asking the NSW government to legislate that a person cannot prove the honest and reasonable belief defence unless they took reasonable steps to obtain consent.
Advocates for this model say it would shift the evidentiary onus onto the accused who is relying on that defence to show what he did to gain consent.
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