Monday, September 16, 2024

Why experts believe legal system is ‘untenable’ for sexual assault cases after Hayne verdict

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Three criminal trials. Two appeals. Six years.

Thirty-six jurors, who each spent weeks carefully weighing the evidence presented in court.

At the centre of the case – a high-profile sports star sent to prison twice for sexual assault, and a young woman who testified the ordeal has left her destroyed and damaged.

As prosecutors weigh up whether Jarryd Hayne should face a rare fourth trial, others are asking: Is the justice system fit for purpose when it comes to sexual assault cases?

Earlier this week, Jarryd Hayne successfully appealed his sexual assault conviction.(AAP: Dan Himbrechts)

The 36-year-old former NRL star has once again been released from custody after the quashing of his latest conviction over allegations he sexually assaulted a woman in her Newcastle home in 2018.

His conviction was overturned earlier this week in a 2-1 split decision by the state’s highest court.

Mr Hayne, who has always maintained his innocence, was granted bail on Wednesday while the Director of Public Prosecutions (DPP) weighs up their decision.

Former magistrate David Heilpern, who is now an associate professor of law at Southern Cross University, said the case showed the system had become “untenable” for sexual assault prosecutions.

“It is simply not acceptable, I would suggest, to the vast majority of the community to have a situation for the complainant and for the defendant in this case, six years later we’re considering whether to have another trial,” Mr Heilpern said.

An elderly man stands by a painted wall.

Former magistrate David Heilpern said, in the wake of Jarryd Hayne’s conviction and appeal, the state should consider removing juries from cases around sexual assault.(ABC News: Natalie Grono)

“The reason this has occurred really is because we still have jury trials.

“We don’t have juries in the local court where matters of great seriousness are dealt with, we don’t have juries in family court where decisions are made about where children live … I think its about time we got rid of the archaic jury trial in sexual assault matters because this is exactly the problem.”

Another high-profile case

Mr Hayne was first tried 2020 on two counts of aggravated sexual intercourse without consent and recklessly inflicting actual bodily harm, which ended in a hung jury after two days of deliberation.

A second trial in 2021 found him guilty of two counts of sexual intercourse without consent.

That verdict was overturned on appeal in February 2022, and he was again released on bail to await another retrial.

At his third trial in May 2023, he was again convicted of sexual assault and sentenced to four years and nine months behind bars.

He would have been eligible for parole in May 2025, if his conviction had not been quashed again this week.

Luke Lazarus leaves court in 2015

Some comparisons have been made between Jarryd Hayne and Luke Lazarus, the teenager who was acquitted of a sexual assault charge against an 18-year-old woman after two trials and two appeals.(AAP: Jane Dempster)

Two of the three judges upheld two grounds of appeal, which centred on how the trial judge dealt with a series of messages the complainant sent on social media, to a friend and a different man.

Comparisons have been drawn this week to another high-profile sexual assault case where Sydney man Luke Lazarus was ultimately acquitted after two trials and two appeals between 2015 and 2017.

“It’s very similar to the Lazarus case where there were two trials and again two misdirections,” Mr Heilpern said.

“I think the comparison there is that we have a very dissatisfied complainant, of course a dissatisfied defendant who spends time in custody whilst, at least from a legal point of view, being innocent because they haven’t been properly found guilty, and a public that gets no result but incredible expense and incredible delay.”

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