By Sarah McPhee
Jarryd Hayne’s lawyers have told an appeal court the former NRL footballer should be acquitted rather than face a fourth trial, arguing the woman he was found guilty of sexually assaulting had concealed texts and social media messages to others that showed she “actually was consenting”.
After a third trial in April last year, Hayne was found guilty of two counts of sexual intercourse without consent, relating to oral sex and the digital penetration of a 26-year-old woman in her Newcastle home on the night of the 2018 NRL grand final.
Jarryd Hayne leaves court in April 2023 after being convicted of sexual assault for a second time.Credit: Nikki Short
Hayne, a two-time Dally M winner, is serving a maximum jail sentence of four years and nine months, with a non-parole period of three years. Due to time already served, he is eligible for parole from May next year.
The 36-year-old’s first District Court trial ended in a hung jury, while the convictions reached by a second jury in 2021 were quashed on appeal and triggered his third trial. Hayne is appealing against his convictions for a second time.
Prosecutors maintain there is “no significant possibility in this case that an innocent person has been convicted”.
Hayne, sporting a fresh haircut, appeared at his hours-long hearing in the Court of Criminal Appeal on Wednesday via video link from Mary Wade Correctional Centre in Lidcombe, in Sydney’s west, while his wife, Amellia Bonnici, also tuned in.
Hayne’s barrister Tim Game, SC, told the court concealment was “front and centre” of the defence case at trial. He said a miscarriage of justice arose from the defence not being able to cross-examine the woman on her deleted or undisclosed texts and social media messages with a man and a woman in 2018 and during Hayne’s first appeal in 2021.
“This is the defence case not being able to be put to the complainant,” Game said.
The complainant’s evidence was that she deleted messages “all the time”.
The third trial heard that the woman’s messages with a man in the hours before the incident with Hayne, in which she said, “If we aren’t going to keep talking, I’m going to say yes to Jarryd” coming over to her house, were only revealed when that man approached Hayne’s lawyers.
The complainant had also messaged a woman that day before and after meeting Hayne, in which she spoke of an encounter and said he “went down on her” but did not say it was non-consensual.
In 2021, she messaged that same woman on Facebook saying, “I have never done anything to you and for you to write something to JH about me having him over does not excuse what happened,” adding, “I did not tell you because it was disgusting and confusing for me.”
Game on Wednesday argued the situation amounted to “concealment of evidence on a large scale”.
“It’s not just, ‘I want to get rid of stuff that’s hurtful.’ It’s ‘I want to get rid of stuff that’s hurtful because it shows that I actually was consenting,’ ” the barrister said.
“It’s evidence of dishonesty. It also goes to her credibility in a general sense.”
The defence also raised the 27-minute period between the end of the grand final match at 9.26pm and Hayne leaving the Newcastle home in his taxi at 9.53pm.
The woman alleged Hayne had pulled off her pants, performed the sexual acts over about 30 seconds and left her bleeding.
Game said what was alleged was a “very rapid sequence of events”.
“We say that could account for several minutes; it couldn’t account for 27 minutes,” he said.
Crown prosecutor Georgina Wright, SC, said the complainant had not told the other woman about the sexual assault because the pair had never met in person, and knew each other from social media.
She said the victim’s complaints to five other people about the night were “remarkably similar” including alleging Hayne was rough and pushy, that she kept saying “no” and had asked him to stop.
“They spoke to the non-consensual nature of their interaction,” Wright said. “The fact she didn’t tell [the other woman] paled into insignificance.”
The prosecutor said the complainant’s Facebook message to the other woman in 2021 was “consistent with an expression of frustration with the legal process” and did not support the thesis that she was “deliberately trying to conceal” her messages.
Hayne’s appeal relies on three grounds: that the verdicts are unreasonable or cannot be supported by the evidence; that the trial judge erred in ruling the woman did not have to give evidence on certain interactions she had with the other man and woman; and that this resulted in a miscarriage of justice.
The prosecutor questioned the scope of the application made by the defence at trial, which she said had been to put to the complainant she “deliberately concealed the messages” and not to ask extensive questions about all of them.
Wright said the area of questioning “fell well short of the test of necessity” and Judge Graham Turnbull was “right to refuse the application”.
Game argued Hayne’s convictions should be quashed, and he should be acquitted if any of the appeal grounds succeed.
“We say this is a case where you wouldn’t order a retrial,” he told Justices Anthony Meagher, Stephen Rothman and Deborah Sweeney.
The judges have reserved their decision.
Support is available from the National Sexual Assault, Domestic Family Violence Counselling Service at 1800 RESPECT (1800 737 732).
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