Jarryd Hayne’s Successful Appeal: The Reasons for the Result

By Emma Starr

Former NRL star Jarryd Hayne was released from custody this week after the highest criminal court in the state, the New South Wales Court of Criminal Appeal (NSWCCA) quashed his conviction for sexual assault after finding a miscarriage of justice had occurred due to errors made by the judge during his District Court trial over events that took place in 2018.

The 36-year old had been sentenced to a full term of four years and nine months in prison, with a non-parole period of three years.

A non-parole period is the minimum time a person must spend behind bars before becoming eligible to apply for conditional release into the community.

Given the time already served, he would have been eligible for release on parole on 7 May 2025.

The DPP will now need to decide whether it will retry Mr Hayne over the marathon proceedings, which have already involved three District Court trials and associated appeals to higher courts.

The incident

Mr Hayne and the female complainant exchanged messages and flirty pictures on Snapchat throughout September 2018, and the latter attending friend’s party in Newcastle on Saturday, 29th September 2018 and into the next morning.

The complainant, who was admittedly ‘pretty intoxicated’ on the night in question, later went home and messaged her address to Hayne so they could meet in person. Hayne took a taxi to the complainant’s premises, met the complainant and her mother, and began conversing and interacting.

Hayne sent the taxi driver away after being at the house for more than 20 minutes. He then returned to the complainant’s room where the pair began to kiss and touch each other sexually, after which further sexual acts were performed.

The complaint asserted at trial that she repeatedly said ‘no’ and ‘no, Jarryd’ throughout the encounter – a claim Hayne rejected at trial, steadfastly asserting the conduct was consensual.

Hayne later washed himself off in the complainant’s sink and took a taxi to Sydney.

District Court trial

During his third District Court trial, the judge refused to allow his lawyers to adduce evidence that the complainant had deleted messages from her phone which related to interactions between herself and another man, and indeed suggested the sexual interactions between herself and Mr Hayne were consensual.

In her police interviews, the complainant made no mention to these messages and – according to the defence – actively attempted to conceal them in order to bolster her claim.

The trial judge refused to allow evidence of these messages – which were later recovered by investigators – into evidence as it was ruled these were not relevant to the determination of whether the complainant had consented to the sexual conduct.

The judge further prohibited the defence lawyers from cross-examining the complainant about why she had concealed the evidence.

Grounds of appeal

Mr Hayne’s lawyers appealed against the District Court conviction on three broad grounds:

1. The verdicts were unreasonable and not supported by evidence at trial.
2. The trial judge erred in ruling that the complainant did not have to give evidence about a 2021 interaction with two people she messaged on the day of the alleged sexual assault in 2018.
3. The judge’s ruling resulted in a miscarriage of justice.

The appeal hearing

During the appeal hearing, which was held on 3 April 2024, the court heard submissions from both parties regarding whether the evidence of the messages should have been brought before the jury, and the defence allowed to cross-examine the complainant about both the messages and her conduct in deleting them and making no reference to her conduct during police interviews,

Mr Hayne’s barrister submitted that both the deleted messages and the fact the complainant had deleted and concealed those messages were relevant in determining the facts at issue during the trial, and should have been allowed to be put before the jury for them to determine the degree of relevance.

It was further submitted that the evidence had the potential to materially influence the ultimate verdict.

The Crown, for its part, contended that none of this was relevant to the determination of whether the complainant had consented and was not sufficiently relevant to her credibility to be admitted before the jury.

In a 2:1 split decision, the NSWCCA found that the evidence was indeed relevant and should have been allowed before the jury, and the defence permitted to cross-examine the complainant about her conduct.

Justice Deborah Sweeney of the majority went so far as to remark that there was a significant possibility that an innocent person has been convicted.

The court determined that the errors amounted to a miscarriage of justice – quashing the conviction and remitting the matter for redetermination.

The DPP will now decide whether Mr Hayne will have to face a fourth sexual assault trial in the District Court of New South Wales.