A top criminal defence lawyer says it is highly likely the Office of the Director of Public Prosecutions will begin an “unprecedented” fourth trial against disgraced former NRL star Jarryd Hayne.
On Wednesday, the former Parramatta Eels fullback was released from Sydney’s Mary Wade Correctional Centre after the Court of Criminal Appeal quashed his convictions for sexually assaulting a woman in Newcastle in 2018.
Now it will be up to the ODPP and NSW Director of Public Prosecutions (DPP) Sally Dowling to decide whether Mr Hayne should face a retrial.
While the Court of Criminal Appeal ordered a new trial, two of the three judges who oversaw Mr Hayne’s appeal urged caution.
However, Hugo Law Group partner Tom Taylor said it was “more likely than not” that the 36-year-old would face a retrial given the “procedural history” of the case.
Mr Hayne’s first trial in 2020 resulted in a hung jury, while his legal team successfully appealed his 2021 guilty conviction on the grounds that the presiding judge gave the jury flawed directions.
Mr Hayne’s team also argued that an outburst from the woman during the first trial where she yelled out “no means no” during cross-examination was “highly prejudicial” and likely to bring a sympathetic response from the jury.
Mr Hayne’s second appeal was won on the grounds that District Court Judge Graham Turnbull SC should have allowed the woman complainant, who cannot be named for legal reasons, to be cross-examined on deleted and undisclosed messages she sent in 2021, and by not allowing this to proceed, it resulted in a “miscarriage of justice”.
“If there were three hung juries, I don’t think there would be a fourth trial but because there’s one hung jury and two miscarriage trials, it’s likely there’ll be a fourth trial,” Mr Taylor said.
Mr Taylor also noted that there was a “pro-prosecution policy” in sexual assault cases by the ODPP – something Ms Dowling has been criticised for.
In March, she told a NSW parliament budget estimates committee that she had instructed her team to examine every sexual assault-related brief that went to trial in order to ensure cases satisfied prosecution guidelines.
While the views of the complainant and the police would be taken into consideration in determining a retrial, Mr Taylor said it was likely the woman would be required to give evidence in a potential fourth court proceeding.
“Given the reason why the convictions were overturned and a new trial was reordered – that Jarryd Hayne’s team wasn’t allowed to cross-examine her – then it’s likely she’ll have to give evidence again,” he said.
Sharing their judgments of Mr Hayne’s second appeal, Justice Stephen Rothman said a “new trial may not be warranted” given the two-time Dally M winner would be eligible for parole in May next year, having served 14 months of his sentence since he was jailed on April 14 last year.
“In the current circumstances, it is unlikely that a new trial will occur before the expiry of the non-parole period and most of that period has already been served,” Justice Rothman noted.
Justice Deborah Sweeney also said she did not believe Mr Hayne should face a fourth trial.
“I am of the view that in the circumstances of the history of this matter, to put the applicant on trial for a fourth time would not be in the interests of justice,” she wrote.
An ODPP statement said the office would “consider the Court of Criminal Appeal’s judgment”.
“Any decision about a possible retrial will be made in accordance with the prosecution guidelines,” a spokesperson said.