By Sarah McPhee
Jarryd Hayne’s lawyers have claimed the woman he was found guilty of sexually assaulting is a person who changes her mind “from one extreme to another”, and may have engaged in consensual sexual activity with the former footballer despite becoming aware of his waiting taxi.
In lengthy documents filed to the Court of Criminal Appeal as they fight to clear his name, Hayne’s legal team argue the jury reached “unreasonable” verdicts, and fresh evidence at the 36-year-old’s third trial “further eroded” the complainant’s credibility.
Jarryd Hayne outside court on April 4, 2023 after he was found guilty of sexual assault.Credit: Nikki Short
However, in Crown submissions also obtained by the Herald, prosecutors say there is “no significant possibility in this case that an innocent person has been convicted”.
Almost one year ago, on April 4, 2023, 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.
The Crown case against Hayne was that the possibility of sex evaporated for the woman when she became aware of his waiting taxi, after a beep of its horn or a knock at the door. Prosecutors alleged Hayne pulled the woman’s pants off, was rough and forceful, and left her bleeding.
Hayne claims the sexual acts were entirely consensual.
Jarryd Hayne is taken into custody in April 2023.Credit: Brook Mitchell
Hayne is due to appear via video link at his appeal against his convictions in Sydney on Wednesday, represented by barrister Tim Game, SC.
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 about a 2021 interaction she had with a man who she had been messaging on the day of the Hayne incident in 2018; and that the judge’s ruling resulted in a miscarriage of justice.
If the first ground is successful, the defence has argued Hayne’s convictions should be quashed, and he should be acquitted. If either of the other grounds succeed, they say a fourth trial would be “oppressive” and would come after Hayne has already spent hundreds of days in custody over the charges.
The new and only defence witness at Hayne’s third trial was a man who had been communicating with the complainant in the hours before she met Hayne in September 2018. He said the woman told him “if I didn’t go see her, she would get Jarryd Hayne to come over”.
According to their texts, seen by the jury, the woman said, “If we aren’t going to keep talking I’m going to say yes to Jarryd Hayne coming here to hang out”.
The man replied: “Omg [three heart eye emojis] get me his signature babe xx”.
The woman told the man he was an “asshole” and “don’t talk to me again”, then asked, “So you’re not coming? You are being really horrible”.
“You said ‘maybe’. So I’m asking if you’re not?” she wrote. “I feel like a f---ing idiot.“
The woman also requested he stop talking to her as he was being a “jerk” and it was bringing her down.
Hayne’s lawyers claim the messages demonstrate the woman’s “emotional changeability”, as she was initially “hostile”, but kept asking the man if he was coming over.
They argue this “changeability” was also evidenced in the complainant’s messages to another woman before the incident which said she was an idiot for “turning down” Hayne, asked whether she should “go see” Hayne, and agreed she would not, before later seeing him.
“The messages ... demonstrate that the complainant is a person who changes her mind, and who changes her mind from one extreme to another, and, that the change of mind occurs within a short space of time and potentially without any input from others/the other person,” the defence states.
“The changeability of the complainant, as evidenced through her communications ... tended to suggest the waiting taxi might not be a barrier to some form of consensual sexual activity.”
The defence said it was “entirely and reasonably possible” any anger the woman felt over the taxi “swiftly dissipated” upon further interaction with Hayne.
Prosecutors dismissed the “emotional changeability” assertion, stating the complainant’s messages with the other man were consistent with how the pair interacted, and that Hayne’s taxi had made the woman realise she was “nothing more than a diversion”.
“As the complainant described in her evidence … she had been in ‘fairy land’ by wanting to meet him [Hayne], and wanting him to perhaps like her so that it might turn into ‘something more’. That all changed when she saw the taxi waiting ... and she felt sad and stupid for flirting with him,” the Crown submissions state.
“It is one thing for the complainant to have been undecided over the course of a day about whether to see the applicant [Hayne] or [the other man], and a very different proposition to suggest that she swung from the dismay and disappointment she described when she saw the taxi to being willing to participate in sexual activity with the applicant [Hayne] minutes later.”
The complainant was recalled to testify at Hayne’s third trial on discrete issues in closed court, including her civil lawsuit in the NSW Supreme Court seeking damages.
However, Judge Graham Turnbull ruled the woman could not be questioned over an incident which arose from Hayne’s first appeal in November 2021, which she had watched via video link.
After her messages with the man from 2018 were raised at the 2021 hearing, she is alleged to have knocked on the man’s door and yelled out “you f---ed my appeal”, before telling police, “if those messages get out, I’m f---ed and he [Hayne] will get off”.
Turnbull ruled the evidence of the woman’s purported outburst had “almost infinitesimal weight”, but the defence claims the decision for her not to be quizzed over it was “erroneous” and resulted in a miscarriage of justice.
Hayne’s first 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 was jailed for a maximum of four years and nine months, with a non-parole period of three years. His sentence was backdated to account for time already served in custody, and he is presently first eligible for parole from May next year.