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?
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.
“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.
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.”
Mr Lazarus spent 11 months in jail after being convicted by a jury at his first trial before being acquitted at his second trial.
The DPP opted not to try him a third time after their appeal failed.
‘We need to look at the entire system’
The landmark case led to the introduction of “enthusiastic consent” laws in New South Wales, after Justice Robyn Tupman found the complainant, Saxon Mullins, had not consented, but that Mr Lazarus had mistakenly and genuinely believed she had.
Ms Mullins told ABC News this week the Jarryd Hayne case was “reminiscent” of her own experience, with lengthy court delays and overturned convictions, and showed the justice system had “failed entirely in every aspect”.
“How can we see the same thing tried for potentially a fourth time? Something has clearly gone seriously wrong,” she said.
“So I guess we have to question, what is the point of it? What is it trying to do? Because whatever it’s trying to do, it’s not happening.”
Ms Mullins believes all parties involved in prosecuting and trying sexual assault cases in NSW needed to be better trained to prevent verdicts being challenged and overturned multiple times.
“What training are we giving these people to make sure that when someone is going through the system, they don’t come up against an error? That they don’t come up against something that might seem very small that the entire case turns on,” she said.
“That’s just one thing that we could do to look into and hopefully stop these cases being tried over and over again.”
In March, the state’s top prosecutor ordered a review of every sexual assault case committed for trial, following criticism from some judges that her team is pursuing merit-less cases.
The director of public prosecutions, Sally Dowling SC has instructed her team to audit every matter due for trial, to ensure prosecuting guidelines have been met.
It came after District Court Judge Peter Whitford SC became the fifth member of the judiciary to question the DPP’s policies when prosecuting sexual assaults.
He said that “time and time again” cases were being prosecuted “without apparent regard to whether there might be reasonable prospects of securing a conviction”.
Mr Heilpern said the review “needs to be taken very seriously”.
“Nobody wants hopeless cases going before the court, its not fair on complainants, it’s not fair on defendants and its not fair on the community that financially supports these processes,” he said.
Ms Mullins said while she disagreed with the judges’ assessment of sexual assault cases, she believes “we need to pick apart what is happening”.
“I think it’s frankly a bit insulting to say that there are these many many merit-less cases coming before the courts when we know how few people go to the police, let alone see a courtroom,” she said.
“But really, the whole system isn’t working, we need to look at the entire system.”
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