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Court stated the directions to Hayne’s Jury were flawed; makes a ground for retrial

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Jarryd Hayne Sexual Assault Case LAW INSIDER

Anushka Sharma –

Published on: November 29, 2021 at 18:30 IST

Jarryd Hayne, a former NRL footballer, was convicted of sexual assault after a Judge provided Jury instructions that were “flawed in practically every possible aspect,” according to an Appeals Court. As a result, he should be retried or acquitted, the Court said.

In September 2018, Hayne, 33, was convicted of two counts of sexual intercourse without consent after he assaulted a woman, then 26 years old, leaving her bleeding from the genitals.

After the first Trial ended in a hung jury, a Jury returned the verdicts in a second Trial. Hayne was sentenced to five years and nine months in prison, with a three-year and eight-month non-parole period.

Hayne’s lawyer, Tim Game, SC, told the Court of Criminal Appeal on Monday that the conviction should be reversed for a number of reasons.

The grounds include that the trial judge, Helen Syme, gave jury directions that were peppered with words like “might” and “may”, which clouded the legal principles the Jury was required to rely on.

“These directions are flawed in almost every possible way,” Mr Game said. “[This] is a retrial ground in itself.”

Other grounds include the admission of particular pieces of evidence, such as messages between the complainant and another person, as well as the replaying of a problematic part of the woman’s testimony from the previous trial. It’s also claimed that the jury’s decisions were irrational.

Mr Game said that unconnected and unresponsive statements made by the woman, such as “no means no,” were prejudiced and extremely likely to elicit pity.

He said that these remarks were “not evidence” and “not probative of anything,” and that they should not have been played to the second Jury.

Mr Game said the question arises of whether the Court should order a retrial, which would be a third trial. He said it was open to Chief Justice Tom Bathurst, Justice Helen Wilson and Justice Ian Harrison to enter a verdict of acquittal instead.

Brett Hatfield, appearing for the Crown, said he does not concede the Jury directions were an error.

“I concede it could have been worded better, but perfection is not required,” Mr Hatfield said.

During Hayne’s trial, it was revealed that he had been conversing with the woman on social media before meeting her for the first time on September 30, when he took a taxi to her Newcastle home on his way back to Sydney after a buck’s party weekend.

She was emphatic she did not want sexual contact with him when she saw he had left his taxi waiting outside, and she informed him so, she told the Court. Despite this, Hayne assaulted her by removing her jeans.