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Poppy Morandin.

Former NRL star, Jarryd Hayne is set to face a third trial over sexual assault allegations, after having his convictions quashed on appeal. 

Hayne successfully appealed his convictions in the New South Wales Court of Criminal Appeal in February, which resulted from his second trial.

Whilst his first trial resulted in a hung jury, his second led to him being found guilty and sentenced to five years and nine months imprisonment, with a non-parole period of three years and eight months.

The convictions resulting from the second trial were overturned after his legal team were able to successfully argue two appeal grounds. 

One of the successful appeal grounds was that the Judge, Justice Helen Syme gave the jury “profoundly wrong” legal directions, with his legal team submitting they that were “flawed in almost every possible way”.

This was due to the directions repeatedly containing words such as ‘might’ and ‘may’, with the chosen phrases deemed to be an inaccurate reflection of the legal principles the jury ought to have relied on. 

Notably, prosecutor Brett Hatfield had previously admitted that the language used was questionable but said: “perfection is not required”.

Hayne’s legal team also succeed in convincing the court that it was an error to overrule a verdict from the first trial in relation to the admissibility of evidence that related to the complainant’s “abiding interest in having sex with Jarryd Hayne”.

The evidence consisted of messages sent by the complainant to another party. 

A further two appeal grounds were argued, however they were unsuccessful and thus dismissed. 

Firstly, Hayne’s lawyers argued that it is an error for the Judge to have enabled the jury to view the complainant’s outburst from the first trial in which she yelled “no means no” under cross-examination. 

It was argued that the admission of his evidence was “highly prejudicial” in that it would have elicited a “very sympathetic response” from the jurors. 

Secondly, it was also argued that the jury’s verdict was unreasonable, due to the inconsistency in the complainant’s evidence. 

Shortly after the NSWCCA quashed his convictions, Hayne was released on bail from Cooma Correctional Centre, on his 34th birthday. 

He spent 9 months in custody. 

Since the appeal court’s decision, the Director of Public Prosecutions has decided to proceed with a retrial. 

The matter is next listed for a mention on 21 March 2022 at Sydney District Court

He remains charged with two counts of aggravated sexual assault, inflicting actual bodily harm.

The Crown contended in both trials that Hayne had left a friend’s bucks party to meet up with the woman at her residence. 

The ‘meet-up’ came after Hayne and the woman had been ‘flirtatiously’ chatting over social media for over a week. 

Hayne arrived at the residence in a cab and is reported to have directed the driver to wait outside for him. 

It is alleged that he forcibly performed oral and digital sexual intercourse on her, causing her to bleed from her genitalia.

If a conviction is returned, following a trial in the District Court, an accused person may elect to appeal this decision in the NSW Supreme Court of Criminal Appeal (‘CCA’). 

This is the highest court for criminal cases in NSW. 

However, an appeal may only be made to the CCA if the grounds relied upon are errors of law. 

Upon a successful conviction appeal to the CCA, the court is able to: 

  • Quash the conviction and immediately acquit the accused person, or
  • If an error is deemed to have occurred in the trial in the original court, the CCA can remit the case back to the original court for a retrial. 

The Director of Public Prosecutions will then decide whether to proceed with a retrial or discontinue their prosecution of the accused person. 

Criminal Defence Lawyers Australia spoke with criminal defence Barrister, Rory Pettit about the law related to retrials.

“It’s similar in a way to retrials after a jury is hung…the DPP will consider whether or not it’s in the public interest, for example, to try the person again. What they will take into account are the considerations outlined in the DPP guidelines when determining this.” commented Mr Pettit. 

Public interest factors outlined in the DPP guidelines include the seriousness of the offence, the prevalence of the offence in the community, the accused’s criminal history and background, and the complainant’s attitude to a prosecution. 

Other considerations are the need to maintain public confidence and whether any resulting conviction would necessarily be regarded as unreasonable or a miscarriage of justice.

“There’s a multitude of factors that would go into that decision. Specifically with regard to a successful conviction appeal, it might well be whether or not the person can get a fair trial after such an appeal, including whether or not the evidence came out in such a way during the trial that they formed a different view as to the prospects of a successful conviction. ”Mr Pettit noted. 

“With that all said, generally speaking, if they’ve had someone convicted in the first place, which obviously they would need for someone to successfully appeal their conviction, the DPP usually form the view that its appropriate to prosecute them again if a retrial is ordered. 

“Of course, they have the endorsement, in a way, of the CCA in that rather than enter verdicts of acquittal, having quashed the convictions, they’ve obviously formed the view that some sort of error was made such that the person didn’t get a fair trial, whether that be ruling on the admissibility of certain evidence that should have gone a particular way or some other judicial decision made in error. As they’ve had the CCA come back and say a retrial is appropriate, they’ll usually just go along with that.” he summarised. 

With Hayne set to face his third trial, and the charges being originally laid in 2018, questions arise as to the possible perpetuity of proceedings. 

“Common sense should, but does not always, tend to prevail, if a jury is hung two or even three times – and I’m sure that has happened although rarely – the prosecution might decide at some point that those results are enough to suggest to them that there aren’t reasonable prospects of a successful conviction, for example. 

“However, in theory, they can just keep doing it, I’m not aware of any provision or rule that prevents them from prosecuting a person a certain number of times, after hung jury verdicts. Generally speaking, at some point, it will come to an end either because it is decided that it’s no longer worth it, as its not in the public interest, or because someone gets convicted or acquitted, and that’s usually the way these things end – they get a verdict.” explained Mr Pettit. 

Mr Pettit noted that matters related to allegations of sexual assault appear to lead to the most retrials. 

Data supports this suggestion, with the Judicial Commission of NSW noting that sexual assault cases are more likely to be appealed, comprising of just over one-quarter of all conviction appeals.

More than half of offenders (51.6%) convicted following a trial for sexual assault and related offences appealed their conviction.

Upon appeal, a verdict of acquittal was entered in 38.0% of cases, and a new trial was ordered in 60.2% of cases.

“One interesting type of trial, or type of allegation, that probably leads to retrials more often occurring are those involving allegations sexual assault, whether upon children or adults…the reason being that when sexual assault complainants, and again when children or adults, give evidence, that evidence is recorded, and kept on file, in the event of a hung jury or a successful conviction appeal and the need for a retrial. Such that, at the next trial, that evidence is just re-played to a different jury and sometimes, in a trial involving different defence counsel.

“Whether fair or not subsequent defence counsel are basically stuck with the forensic decisions made by the first, stuck with the way that the trial was run the first time as well.

“With that being said there are circumstances in which an application can be made for the complainant to be re-called, to give evidence over and above the original evidence. I should add that there are very good policy reasons for the approach, with respect to sexual assault allegations, which is that it avoids the need to re-call and potentially re-traumatise a complainant of sexual assault.” Mr Pettit explained. Provisions related to pre-recorded evidence in sexual assault related trials, and retrials, are contained within Part 5 of the Criminal Procedure Act 1986.

Published on 08/03/2022

AUTHOR Criminal Defence Lawyers Australia

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