On Tuesday 15 February 2022, former NRL player Jarryd Hayne walked free from jail, where he’d spent nine months behind bars after a jury found him guilty of rape.
Hayne will now face a third trial in March 2023, where essentially the same facts and evidence will be presented to a jury yet again, showing how fraught sex assault trials can be.
Hayne’s first trial in 2020 and the re-trial in 2021 played out against the backfrop of the #metoo movement, at time when Chanel Contos’s now successful #teachusconsent campaign ran alongside the #letherspeak campaign that saw Grace Tame become Australian of the Year, joined later by ex-political staffer Brittany Higgins as the poster women for placing sexual assault at the forefront of public debate.
Around the same time, another NRL player, Jack de Belin and his mater Callan Sinclair, also faced two trials each on the same complaint. In the first trial, the jury was hung. That is, the jury was unable to reach a decision. Jury deliberations are secret, but it’s likely that some jurors wanted to convict and others didn’t. Without a unanimous or majority verdict, there’s no conviction. At the second trial, the jury found each of the men not guilty of a single count of sexual assault but couldn’t reach a majority decision on the five other counts. Hung again. The Director of Public Prosecutions decided not to proceed with a third trial against either of the men.
Some will argue that the blame for the continued legal wrangling and jury indecision lies with the law itself. New affirmative consent laws due to come into effect in NSW in mid-2022 might assist, although there are many who question whether the reforms will have any practical effect. Similar reforms have also been proposed in Victoria.
At the end of the day, the end of the trials for Jarryd Hayne, Jack de Belin, Callan Sinclair, and every accused who disputes charges of sexual assault, the facts are decided by the jury – 12 members of the community – who see and listen to all of the facts and evidence. Whilst the judge directs the jury on the legal questions they have to consider, in these “he-said-she-said” cases it often all boils down to which person the jury believes.
There’s no doubt the legal merry-go-round takes a toll on the defendants and their families when such serious charges are hanging over their heads but there’s also a considerable impact on the complainant, the alleged victim, who also has to re-live their experience over and over again. Although the law provides for the complainant’s evidence at the original trial to be recorded and replayed at any subsequent trial,[1] there can’t be closure for any of the parties, until the matters are finalised.
In the Hayne case, the alleged assault occurred on 30 September 2018. The third trial is set down for three weeks in March 2023.
Timeline
| Mid-2018 | The woman & Hayne start messaging each other |
| 30 September 2018 | The woman and Hayne arrange to meet at the woman’s mother’s house in Newcastle, where Hayne has spent the weekend at a friend’s buck’s party |
| 18 November 2018 | Hayne arrested |
| Nov-Dec 2020 | First trial held in Newcastle – no verdict reached |
| 8 – 22 March 2021 | Second trial held in Sydney – Hayne found guilty by a jury of two counts of sexual intercourse without consent |
| 6 May 2021 | Hayne convicted and sentenced to five years and nine months in gaol, with a non-parole period of three years and eight months. |
| 15 February 2022 | Hayne walks free from gaol after the Court of Criminal Appeal quashes his convictions.
Although case law appears to have the wrong section in summary. s 61HA(3)(c) Do they mean s61E(3)(c). |
| 6 March 2023 | Third trial to commence |
I use the Hayne case as an example for no other reason than it has been in the news recently and as it helps to demonstrate some of the issues that surround accusations of rape and sexual assault where the outcome turns on consent.
The sexual encounter
In 2018, the woman, known in court as BA[2] was 26 and living in Newcastle with her mother. Hayne was a 28-year-old professional rugby league player. Over a few months before September that year, BA and Hayne were messaging each other on Instagram, Snapchat and SMS. The messages were ‘flirty’ and included sexual references and images which were personal but not intimate.
Hayne told BA that he was coming to Newcastle for a buck’s weekend on 29 and 30 September. He was drinking alcohol for much of the weekend and said he was ‘moderately intoxicated’. Hayne and BA were messaging each other and they agreed that Hayne would come to her house. She told him that her mother was home.
Hayne left the party he was attending. He had booked a taxi to take him back to Sydney. He asked the taxi driver to stop at BA’s house on the way. Hayne arrived at BA’s house and went into her bedroom. Hayne tried to kiss her. BA says that she said “no” to Hayne’s advances a number of times. Hayne then performed cunnilingus (the first charge) and digitally penetrated her (the second charge), ‘almost simultaneously’.
Hayne told the court that the sexual activity was consensual. He denied that BA ever said “no”.
Consent – the law
So Hayne has not denied that he went to BA’s house and that there was sexual activity. The issue is whether BA consented to the sexual activity or not.
The Crimes Act 1900 (NSW) says:
“A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity”.[3]
Then follows the question of knowledge about consent and a list of circumstances in which consent can not be given such as if the complainant is substantially intoxicated by alcohol or any other drug, asleep, threatened etc. Despite the legislation and the case law that’s grown up around this issue, whether or not a complainant consented to the sexual activity is different in every case and juries often appear to struggle with the legal definitions versus their own beliefs, especially when the offending behaviour must be proved beyond a reasonable doubt.
At Hayne’s second trial the jury believed BA and not Hayne and found that he was guilty of performing both sexual acts without BA’s consent. Hayne was sentenced to a total (aggregate) five years and nine months in gaol, with a non-parole period of three years and eight months.
The appeal
However, the final decision does not always lie with the jury. The NSW Court of Criminal Appeal (CCA) has quashed those convictions and ordered a re-trial, a third trial.
Hayne’s appeal was successful on two grounds. They were:
- That the judge’s directions to the jury were “flawed” – that is, that the judge in the trial did not give the jury the correct guidance on how to apply the law to the evidence; and
- That text messages from BA (the complainant) with another person should have been admitted into evidence.
Two other grounds of appeal were unsuccessful. They were:
- That BA’s evidence was so inconsistent that it was unreasonable for the jury to find Hayne guilty; and
- That it was an error to allow the jury to view part of BA’s recorded evidence from the first trial.
The CCA judgement has not been published as is often the case when the court rules on evidence in a criminal trial and a further trial has been ordered.
The charges
Hayne is charged with two counts of aggravated sexual intercourse without consent[4] – one for the act performing cunninglingus on BA, the other for digitally penetrating BA. This offence carries a maximum penalty of 20 years’ imprisonment.
In the first trial, the jury could not reach a unanimous or majority verdict. In the second trial, the jury did not find Hayne guilty of the aggravated offences charged. Instead, they found him guilty of the alternative, less serious offence, of sexual intercourse without consent[5], ie that there was no aggravation. This offence carries a maximum penalty of 14 years’ imprisonment with a non-parole period of seven years.
Aggravated or not, both constitute rape.
The new consent laws
The consent laws in NSW will change in mid-2022. However, Hayne will be tried under the current legislation.
The changes to the Crimes Act 1900 will specify that here must be positive consent to sexual activity. That is, that consent must be communicated by words or actions, not just assumed. Also, an accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent. The affirmative consent laws are designed to overcome, in part, a common issue in sexual assault trials that the offender had “reasonable grounds” for believing the complainant had consented. Only time will tell whether the new laws will provide better and faster outcomes for all parties.
[1] Criminal Procedure Act 1986, ss 306A-306G
[2] The court used the pseudonym BA for the complainant (alleged victim) in the second trial. The law prevents publication of the names of victims of sexual assault.
[3] Crimes Act 1900, s61HE(2).
[4] Contrary to section 61J of the Crimes Act 1900
[5] Contrary to section 61I of the Crimes Act 1900