‘Not in the public interest’: DPP’s ‘important decision’ on fourth Jarryd Hayne trial after successful appeal

Jarryd Hayne was seen leaving jail on Wednesday night as the NSW DPP decides whether he should face a fourth trial following a second successful appeal against rape convictions.

Ex-NRL star Jarryd Hayne pictured leaving Mary Wade Correction Centre in Lidcombe. Picture: Sam Ruttyn

NSW chief prosecutor Sally Dowling must decide if former NRL star Jarryd Hayne should undergo a fourth trial after his rape convictions were overturned in the state’s highest court, with one insider saying a renewed prosecution may not be in the public interest.

The NSW Court of Criminal Appeal on Wednesday upheld Hayne’s appeal on two of the three grounds argued by his defence team, after a jury found him guilty last April of sexually assaulting a woman in Newcastle in September 2018.

Jarryd Hayne's Lawyer Lauren MacDougall on Wednesday. Picture: NewsWire / Gaye Gerard

The two-time Dally M winner, aged 36, has now faced three trials, two guilty verdicts, two successful appeals, and spent 23 months in custody – 14 months having been served since his second conviction. The man, once dubbed the “Hayne Plane” by adoring fans, has consistently ­denied sexually assaulting the then 26-year-old woman at her home at Fletcher, on Newcastle’s outskirts.

Judge Deborah Sweeney wrote in Wednesday’s judgment that “to put the applicant on trial for a fourth time would not be in the interests of justice” but that the decision rested with the DPP.

Jarryd Hayne leaving Mary Wade Correctional Centre just after 5pm. Picture: Aymon Bertah

Hayne pictured leaving prison on Wednesday night. Picture: Sam Ruttyn

In those same written reasons, Justice Stephen 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.”

One ODPP employee, who spoke on the condition of anonymity, said it was clear from the judgment the Supreme Court does not believe the matter should face court again. “If you read between the lines of the judgment, it is clear the Supreme Court (does) not think a further trial should proceed although the (DPP) is not bound by their views and is independent. Therefore, she may decide to prosecute the matter a fourth time,” they said.

“The decision is an important one. I think the previous director would have declined to proceed a fourth time, as it is not in the public interest to run it again.”

In a statement on Wednesday, the ODPP said it would consider the court’s judgment and any decision about a possible retrial would be made in accordance with prosecution guidelines.

The Australian understand Ms Dowling spent Wednesday in the DPP’s Parramatta offices on a prearranged visit.

Sally Dowling SC.

Hayne’s legal team successfully argued that the trial judge made an error when he did not allow the complainant to give ­evidence about texts and social media conversations with two people in 2018 and 2021, which the defence argued the complainant tried to conceal because “they did not support her version of what occurred and then (possibly) tried to influence in respect of her evidence”.

This decision by the trial judge also resulted in a miscarriage of justice, the court found.

One of Australia’s most eminent silks, Arthur Moses, said the DPP would need to carefully work through a number of issues including the prospect of a conviction given the court ruling meant the complainant could now likely be cross-examined about the messages.

He said the DPP would also need to consider “the public interest in embarking on a fourth trial in circumstances where the accused has already been incarcerated for almost the length of a non-parole period of any sentence that could be imposed on him if he were convicted”, as well as the “personal impact of a fourth trial on the complainant and the accused”.

Arthur Moses SC (centre). Picture: NCA NewsWire / Jeremy Piper

Hugo Law Group partner Karen Espiner said while Hayne’s ground that the jury’s verdicts were unreasonable and/or not supported by the evidence failed, Justice Sweeney would have allowed it. This, she said, “weighs heavily against a ­further trial”.

“Her Honour would have therefore entered verdicts of acquittal, not a retrial,” she said.

“The director will no doubt pay close regard to the evidence from trial, especially in light of Justice Sweeney’s minority view.”

Outside court, Hayne’s lawyer Lauren MacDougall said: “He’s really, really looking forward to getting home to his family. And that’s all I’m prepared to say at this moment.”

The matter is listed for District Court mention on July 26.