DPP Discontinues Sexual Assault Proceedings Against Jarryd Hayne

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Jarryd Hayne

Former rugby league star Jarryd Hayne’s six-year legal battle has officially ended, with the sexual assault proceedings against him being formally discontinued.

The New South Wales Office of the Director of Public Prosecutions (ODPP) has determined that …’having carefully considered the many competing factors that inform the assessment of the public interest in this case… it will not proceed to a fourth trial against Mr Hayne,’ adding that ‘the decision was made within the Prosecution Guidelines.

A brief history of the six-year saga

The allegations of sexual assault made against Mr Hayne were first made in 2018 and Jarryd Hayne was charged with two counts of sexual assault without consent, a criminal offence under section 61i of the Crimes Act 1900, an offence which carries a maximum penalty of 14 years imprisonment.

He faced trial in 2020, which resulted in a hung jury. After a second trial, a jury found him guilty in March 2021 of two counts of aggravated sexual assault and he was given a minimum sentence of three years and eight months in prison.

In February 2022, the Court of Criminal Appeal allowed the appeal, quashed Hayne’s conviction and ordered a fresh trial – it would be the third.

At this third trial in 2023 Hayne was again convicted and sentenced to 4 years and 9 months in prison, in consideration of time already served.

In recent days he won his appeal against his second conviction with the Court of Criminal Appeal quashing the charges and ordering a fourth trial. The court upheld Mr Hayne’s appeal on the basis a judge erred in not allowing the complainant to be further cross-examined during the trial and also that the trial judge did not properly direct the jury about how to deal with allegations the complainant had lied.

However, the final decision – whether or not to proceed with a fourth trial – lay in the hands of the ODPP.

DPP prosecution guidelines

The ODPP has a duty to ensure that those who are guilty are brought to justice and that those who are not, are not wrongly convicted.

The guidelines for decisions made by the prosecutorial body set out, among other things, the general principles for the initiation and conduct of criminal prosecutions.

These publicly available prosecution guidelines are issued under section 13(1) of the Director of Public Prosecutions Act 1986,  and set out the general principles for the initiation and conduct of criminal prosecutions.

Public interest test

Many factors go into determining whether or not a person will be prosecuted and while the ODPP has specifically cited ‘public interest’ in this case, this is also not as clear cut as it may initially appear, taking into consideration a number of elements.

These factors include, but are not limited to:

  • the seriousness, or triviality, of the criminal offence
  • the prevalence of the type of criminal offence in the community and the public concern over this type of offence
  • the passage of time since the alleged offence, with regard to its seriousness and easons for the delay in charges being laid.
  • the accused’s degree of culpability
  • the accused’s criminal history and background
  • the accused’s age, physical health, mental health or cognitive impairment
  • whether the offence occurred while the accused was serving a sentence, on bail or remand.

The ODPP will also take into account the alleged victim’s attitude towards prosecution, and the impact that prosecution may have on them – this includes whether the alleged victim / victim’s family may need protection. It will also take into account sentencing factors and whether or not there are  alternatives to prosecution, including disciplinary proceedings.

The ‘interests of the public’ includes an emphasis on upholding confidence in the justice system – its competence and integrity.

Applying this test, the ODPP has decided to discontinue the proceedings against Mr Hayne, although the Office has made clear it will not make public its specific reasons for doing so.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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