By Sarah McPhee and Michaela Whitbourn
Jarryd Hayne walked out of a Sydney prison after the state’s top court quashed his sexual assault convictions but left the door open to the former footballer standing trial for a fourth time.
The former Parramatta Eels player passed through the gate of Mary Wade Correctional Centre in Lidcombe about 5pm on Wednesday in a business shirt and chinos, before getting into the back seat of a silver ute carrying two other men. Hayne, who was wearing sunglasses, appeared expressionless as the vehicle drove away, and was chased by a waiting media pack.
Jarryd Hayne leaves prison on Wednesday afternoon.Credit: Steven Siewert
Hayne’s solicitor, Lauren MacDougall, told this masthead that “he’s obviously very happy the appeal was upheld and just wants to get home to his family”.
Hayne was released on bail with conditions including a $20,000 surety.
In a judgment delivered on Wednesday, the NSW Court of Criminal Appeal upheld Hayne’s appeal against his convictions in a majority 2-1 decision and ordered a new trial. However, the court did not endorse a further trial, and it is up to the state’s top prosecutor to decide.
Jarryd Hayne speeds past media waiting outside prison.Credit: Steven Siewert
Hayne, 36, was found guilty at a third trial last year 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. He was charged in November 2018.
One taxi, 46 minutes
The court heard Hayne arrived at the complainant’s home at 9.07pm on September 30, 2018, and his taxi departed about 46 minutes later, at 9.53pm.
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 by the driver.
“My heart dropped kind of thing ’cause I-I felt like he had only come there for one thing,” the complainant said in her evidence.
Hayne gave evidence that he knew the woman “didn’t want to have sex”. He agreed that he drew a distinction between the sexual acts that occurred, which he claimed were entirely consensual, and what he regarded as sex.
Prosecutors alleged Hayne pulled the woman’s pants off, was rough and forceful, and left her bleeding.
The appeal
Hayne’s appeal was heard in April by Justices Anthony Meagher, Stephen Rothman and Deborah Sweeney.
His lawyers relied on three grounds of appeal, including two linked grounds relating to the trial judge’s refusal to permit the defence to cross-examine the complainant about her interactions with others on the day of the incident and its aftermath, and the judge’s direction to the jury about how to treat allegations the woman had lied.
Jarryd Hayne outside the NSW District Court on April 4 last year after he was found guilty of sexual assault.Credit: Nikki Short
Rothman and Sweeney allowed the appeal on those two grounds and found a miscarriage of justice had occurred.
Fourth trial may not proceed
Hayne’s first trial in 2020 ended in a hung jury. The convictions reached by a second jury in 2021 were quashed on appeal, triggering a third trial.
In separate reasons for his decision, Rothman said: “While there may be very good reason why, in circumstances where an accused has suffered three trials and already served significant time in prison, a new trial may not be warranted, in my view, that is a consideration that should be left to the Director of Public Prosecutions or her delegate.”
He added that “it is unlikely that a new trial will occur before the expiry of the non-parole period [in May next year] and most of that period has already been served”.
Sweeney said that “I am of the view that in the circumstances of the history of this matter, to put the applicant on trial for a fourth time would not be in the interests of justice”, but it was a decision for the DPP.
The Office of the DPP said in a statement on Wednesday: “The ODPP will consider the Court of Criminal Appeal’s judgment. Any decision about a possible retrial will be made in accordance with the Prosecution Guidelines.”
Hayne’s barrister, Tim Game, SC, had argued a miscarriage of justice arose from the defence not being able to cross-examine the complainant about her deleted or undisclosed texts and social media messages with a man and a woman, sent in 2018 and during Hayne’s first appeal in 2021.
The complainant’s messages
The third trial heard that the woman’s messages with 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” coming over to her house – were only revealed when that man approached Hayne’s lawyers.
The court heard the complainant messaged a woman on Snapchat on the day she met Hayne and said the footballer “went down on” her, but did not say it was non-consensual.
The court heard police did not become aware of the messages until 2020.
The majority found the trial judge had erred in not giving leave for the complainant to be cross-examined about her communications with the woman, including a subsequent Facebook message on November 29, 2021, and views conveyed that same day about her messages with the man.
“The jury were deprived of evidence which had significance for their assessment of the honesty of the complainant,” Sweeney said.
“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. The combined effect of those circumstances was to cause a miscarriage of justice in the trial.”
The sentence
After the jury in Hayne’s third trial returned unanimous guilty verdicts in April last year, District Court Judge Graham Turnbull jailed Hayne in May for a maximum of four years and nine months, with a non-parole period of three years. Due to time already served, he would have been eligible for parole from May next year.
Hayne’s matter returns to the District Court for a mention on July 26.
Support is available from the National Sexual Assault, Domestic Family Violence Counselling Service at 1800 RESPECT (1800 737 732).