Should Jarryd Hayne Be Behind Bars?

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Jarryd Hayne

Jarryd Hayne is back in custody following the unsuccessful challenge to the prosecution’s application to have him held in custody until his sentencing hearing next month.

The New South Wales Supreme Court yesteeday found no grounds for the former NRL star to remain at liberty, specifically referencing recent amendments to the Bail Act 2013, namely section 22B, which requires the defendant, in this case Mr Hayne, to show special or exceptional circumstances for remaining on bail.

Section 22B

Under section 22B, which was introduced into the Bail Act just last year, there are strict limitations regarding bail during period following conviction and before sentencing for certain offences:

(1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court—

(a) on a release application made by the accused person—must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or

(b) on a detention application made in relation to the accused person—must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision.

(2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person’s detention is not justified.

(3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section.

(4) This section applies despite anything to the contrary in this Act. (5) In this section— conviction also includes a plea of guilty.

Note— Conviction is defined in section 4(1) to include a finding of guilt.

 Guilty of sexual assault

Earlier this month, Jarryd Hayne was found guilty by a jury of two counts of sexual intercourse without consent. This was his third trial, after the first ended in a hung jury, and the second resulted in a guilty verdict which was successfully appealed. By the time of the appeal, Jarryd Hayne had been sentenced and served 9 months behind bars at the Cooma Correctional Centre. After the jury reached the verdict of guilty, Mr Hayne was granted bail – on strict conditions – pending the prosecution’s application.

Bail denied

In determining Mr Hayne’s challenge to the bail application, Justice Button noted that “the time-honoured and constitutionally entrenched tribunal of fact was satisfied that those offences had been proven beyond reasonable doubt; the presumption of innocence has been overcome; the strength of the Crown case is now irrelevant; and, for all purposes within the criminal justice system, it is established that Mr Hayne is a person who committed two extremely grave sexual offences.”

“It also means that, as is agreed at the Bar table, incarceration is inevitable, despite his previously having served some time in prison for the same offences.”

Insufficient evidence of “special circumstances”

Mr Hayne was seeking bail until his sentencing hearing, on May 8 on the basis that there would be significant difficulties for his family preparing for his sentence (his wife has already hinted that the family will move close to wherever Mr Hayne is held in custody for the duration of his sentence). Furthermore, his lawyers cited significant upset to the family caused by the media attention on the case.

While Justice Button acknowledged that the media attention and extensive coverage of the case would have been intrusive and distressing, he determined that the media often takes a “significant interest in criminal proceedings, in my experience, especially those involving homicide and, as here, sexual violence, whether against children or adults.

He also acknowledged that if there was a question of the family feeling unsafe, steps could be taken that “don’t require Mr Hayne to be at liberty.”

A final concern argued by Mr Hayne’s lawyers is that Mr Hayne, because of his public profile won’t be safe in prison, however the judge said that precautions would be taken to protect Mr Hayne. This may mean that he spends the next few weeks in isolation.

With his bail revoked, Mr Hayne has been in custody since today’s hearing.

He will remain in custody until his sentencing hearing next month.

Much has been reported about the Hayne trial, however a great deal of evidence presented in court has not been made public. The complainant can still not be named for legal reasons.

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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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