Is it Fair for a Defendant to Face a Third Criminal Trial?

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Jarryd Hayne

Jarryd Hayne will face a third trial after a successful application to the New South Wales Court of Criminal Appeal. 

The former NRL star was released on bail from Cooma Correctional Centre last month after having his previous convictions for sexual intercourse without consent quashed. 

The appeal was won because the presiding judge was found to have misdirected the jury on the law, as well as the fact that testimony that was determined to be inadmissible in the first trial was used in the second.

Jury directions are instructions on the law that the presiding judge gives to members of the jury when they are considering whether to find a defendant guilty or not guilty of the charges brought against them.

Misdirections on the law and the admission of evidence that should have been considered inadmissible can result in a miscarriage of justice, and even to those who should have been found not guilty instead being convicted.

The first two trials 

Mr Hayne’s first trial ended with a hung jury; which is where the jury is unable to reach either a unanimous verdict (where all jurors agree one way or the other in terms of guilt) or, if the judge directs that a majority verdict may be reached, the jury is then unable to reach such a verdict.

A second jury found Mr Hayne guilty of two counts of sexual assault. He was found not guilty of the more serious charge of aggravated sexual assault, but at the time was sentenced to five years and eight months behind bars. He served nine months before winning his appeal. 

The allegations

The charges relate to a sexual encounter that Mr Hayne had with a woman in her Newcastle home on Grand Final night in 2018. Mr Hayne has always steadfastly maintained his innocence, and that the encounter was consensual, although the court heard that the woman suffered bleeding and bruising afterwards. 

The victim has never been named for legal reasons, but she has filed civil proceedings in the Supreme Court of New South Wales, which are unlikely to proceed until the criminal matter has been finalised.

Sexual intercourse without consent 

In New South Wales, the charge of sexual intercourse without consent is also known as sexual assault. It used to be called rape. It is an offence under section 61i of the Crimes Act 1900, which carries a maximum penalty of 14 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

The accused had sexual intercourse with another person:

  • Without the consent of the other person. 
  • Knowing the other person did not consent
  • Or was reckless as to whether the other person consented, or having no reasonable grounds to believe the other person consented

A person must be found not guilty if the prosecution is unable to establish all three of those ‘elements’.

Sexual intercourse is defined by section 61HA as: Penetration to any extent of a female’s genitalia, or the anus of any person, by any part of, or object used by, another person, or a penis inside the mouth of another person, or cunnilingus. 

Consent in New South Wales

Central to any sexual assault trial is the issue of consent. New South Wales consent laws have been undergoing significant reform. New, affirmative consent laws are expected to come into force in New South Wales later this year. 

Under the new laws, people intending to engage in sexual activity must have obtained clear mutual consent – an unmistakable affirmative signal that they are willing to participate. 

The new laws will only be a consideration in the Hayne trial if when they come into effect they are to be applied retrospectively.   

The existing consent laws are less specific in terms of requiring a ‘definite yes’ before sexual activity, although Section 61HE of the Act provides that consent is considered to have been given in the context of sexual assault cases where a person “freely and voluntarily agrees to the sexual intercourse.”

To establish a lack of consent, the prosecution must first prove the complainant did not consent. It must then prove that the defendant knew the complainant did not consent.

A career in tatters 

The criminal charges against Mr Hayne have all but decimated the former NRL Golden Boy’s career. He had agreed to a $500,000, one-year contract with St George Illawarra, although the deal fell through when he was charged in November 2018. 

The previous two high profile trials and subsequent verdicts have also polarised football supporters. After Mr Hayne was sentenced last year, his supporters shouted obscenities and spat towards the victim as she was leaving the courthouse. A brawl also broke out between journalists and Hayne supporters, but no arrests were made.

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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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