Things have gone from bad to worse for former Parramatta Eels Rugby League star Jarryd Hayne.
It has been reported that the two time Dally M medallist and former San Francisco 49ers player – against whom civil proceedings for sexual battery were commenced in California last year – voluntarily attended Ryde police station this afternoon, where he was formally arrested and charged with aggravated sexual assault and assault occasioning actual bodily harm against a woman in the Hunter Valley on Grand Final night, 30 September 2018.
It has been reported the pair were communicating on social media, before Hayne agreed to travel to the woman’s home in the Hunter.
The pair allegedly engaged in sexual intercourse during which the complainant is said to have suffered physical injuries.
Mr Hayne is understood to be under questioning by police, after which it will be decided whether he will be granted police bail (at the police station) or appear before Parramatta Local Court for a bail application tomorrow morning.
Aggravated sexual assault in NSW
It is where a person has “sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse”.
Sexual intercourse is defined by section 61H of the Act as:
- sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
- any part of the body of another person, or
- any object manipulated by another person, or
- sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
- cunnilingus, or
- the continuation of any of the above conduct.
‘Circumstances of aggravation’ are where:
- at the time of, or immediately before or after, the commission of the offence, the defendant intentionally or recklessly inflicts actual bodily harm on the complainant or any other person who is present or nearby, or
- at the time of, or immediately before or after, the commission of the offence, the defendant threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of an offensive weapon or instrument, or
- the defendant is in the company of another person/s, or
- the complainant is under the age of 16 years, or
- the complainant is (whether generally or at the time of the commission of the offence) under the authority of the offender, or
- the complainant has a serious physical disability, or
- the complainant has a cognitive impairment, or
- the complainant breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
- the complainant deprives the complainant of his or her liberty for a period before or after the commission of the offence.
It appears police are relying upon the first mentioned circumstance of aggravation.
Aggravated sexual assault carries what’s known as a ‘standard non-parole period’ (SNPP), which in this case is 10 years imprisonment. An SNPP is a reference point or guidepost for a sentencing judge when deciding the minimum term (or non-parole period) that a person must spend behind bars before becoming eligible for release from custody on parole.
The issue of consent
To establish Mr Hayne’s guilt, the prosecution will need to prove that sexual intercourse took place and that the complainant did not consent to the intercourse.
Section 61HA (now superseded by 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.
This second requirement is established where the prosecution proves that the defendant:
- knew the complainant was not consenting, or
- was reckless as to whether the complainant was consenting, or
- had no reasonable grounds to believe the complainant was consenting.
In making such a finding, the court must have regard to all of the circumstances of the case including any steps taken by the defendant to ascertain whether the complainant was consenting, but it must not consider any self-induced intoxication by the defendant.
In addition to this, the law provides that a person cannot consent to sexual intercourse where he or she:
- does not have the capacity to consent due to their age or cognitive incapacity, or
- does not have the opportunity to consent as they are unconscious or asleep, or
- consents because of threats of force or terror, or
- is unlawfully detained.
The law also provides that a person does not consent if under a mistaken belief that:
- he or she is married to the defendant, or
- that the sexual intercourse is for health or hygienic purposes.
The law also presently provides that the grounds on which it may be established that a complainant does not consent to sexual intercourse include where he or she:
- was substantially affected by drugs or alcohol,
- was subjected to intimidatory or coercive conduct, or another threat, that did not involve force,
- was taken advantage of through an abuse of authority or trust.
The law also makes it explicitly clear that a complainant who does not offer physical resistance is not necessarily consenting.
Assault occasioning actual bodily harm
‘Actual bodily harm’ (ABH) is harm which is more than ‘transient or trifling’; in other words, more than slight harm – such as minor redness or passing scratches – which quickly subside; Donovan  2 KB 498.
Examples of ABH may include bruises or lasting scratches or swelling; McIntyre v Regina (2009) 198 A Crim R 549 at para .
What next for Hayne?
After the arrest and charge process, police will decide whether to grant Mr Hayne bail at the police station. This is known as ‘police bail’.
If he is refused police bail, Hayne is likely to be brought before Parramatta Local Court tomorrow morning for a bail application.
If you are going to a court in Parramatta and require the services of an experienced criminal defence lawyer, call us anytime on (02) 9261 8881 to arrange a free first appointment.
We offer fixed fees for many of our services, including all bail applications.