Former rugby league star Jarryd Hayne is no closer to ending his sexual assault saga after a Newcastle jury failed to reach a majority verdict.
This comes just a week after another jury were unable to come to a decision in relation to similar charges against NRL player Jack de Belin.
32-year-old Hayne has been charged with two counts of aggravated sexual assault causing actual bodily harm. The actual bodily harm relates to an injury to the complainant’s vagina that resulted in bleeding.
Hayne claimed the encounter was consensual, while the prosecution alleged that the ex-league star was aware the woman had not given consent.
The case will be in Newcastle District Court again on 16 December 2020 where the Director of Public Prosecutions will consider whether to seek a retrial.
Jarryd Hayne charged with sexual assault
Jarryd Hayne’s aggravated sexual assault charges stem from an encounter with a 28-year-old woman in her home on the night of 30 September 2018 – the night of the NRL grand final.
Over the 13 days leading up to that day, Hayne and the woman had exchanged numerous “flirty” and “sexy” social media messages.
Under cross-examination, the complainant agreed that she, “might want to do something sexually”, with Hayne when they met. However, she qualified this by adding, “It depends how I was feeling at the time, if I thought it was right”.
During the day of 30 September 2020, Hayne had been at a buck’s party of a former Fijian national teammate, Kevin Naiqama. Mr Hayne consumed a number of alcoholic drinks at the party.
He left the gathering in a cab and had arranged to attend the alleged victim’s house.
When he arrived the complainant’s mother answered the door and directed him to the woman’s bedroom.
Woman accuses Jarryd Hayne of sexually assaulting her
Hayne spoke to the alleged victim in her room and suggested they have a ‘singalong’.
The crown prosecutor suggested that the footballer did this as an attempt to ‘seduce’ the complainant. Hayne denied that was his motive.
About 20 minutes later the cab driver knocked on the door and told her mother that she had been waiting for Mr Hayne.
“Then I said there is no way anything will happen. Jarryd walked outside and saw the taxi driver,” said the woman.
In the video the woman said Mr Hayne then returned to her bedroom and proceeded to attack her.
“He’s walked back in, I was lying here [on the bed] still, he has come in and I have kind of moved away. He moved along here and was trying to kiss me and stuff but ignoring what I was saying — I said no. I was really, really upset. He kneeled on the bed, it had gone bang — a slat broke.”
“He got on me and was pushing me down…I don’t know if he thought he was being sexy or what, then he grabbed me and pushed me down. He pushed my face down, pulled my clothes off and I am not sure whether he bit me or cut me, or whatever the hell he did, but I was saying ‘Don’t, no, I don’t want to’, and then I was bleeding everywhere.”
Asked if she knew what caused the bleeding, she said, “I think it was his mouth. I don’t know whether he cut me with a ring, nails, or whatever — he was just being really rough. It was forceful, it was fast and that is why I can’t say whether it was his mouth, a ring or fingernail. I said no.”
Mr Costello asked the woman how many times she had said “no”.
“I said ‘No’ and said ‘No Jarryd’ probably about three or four times. I wanted him to stop and I didn’t want to touch him and I didn’t want him to touch me. I think I froze — it was really confusing, but he knew I didn’t want to, I said no.”
Complainant scolded by Judge
The 28-year-old complainant exploded when asked by defence barrister Phillip Boulten SC about text messages she had sent to her friends.
“It is irrelevant, you are making me look stupid and look like an idiot — he f***ing knows what I f***ing said. No means f***ing no,” said the woman.
At that point Judge Peter Whitford stopped the woman and told her, “Mr Boulten has a job to do.”
Judge Whitford then ordered her to leave the room and take a break while the jury was still present.
As the woman walked out she turned to Mr Hayne and said, “you f***ing piece of shit”.
When she returned to the witness box, Judge Whitford told the jury that Mr Boulten had “done nothing wrong” and was, “just doing his job”.
Mr Boulten then referred to another conversation the complainant had on Snapchat after Mr Hayne had left. He suggested to her that there was no reference to Mr Hayne allegedly forcing her to have sex against her will.
“I can’t remember what I said but I know exactly what happened and so does he,” the woman said.
Hayne’s barrister retorted, “You are making this up.”
“Do I have to put up with this? He is making me out to be a liar,” the woman said.
However, Judge Whitford told her, “You just need to answer these questions.”
Complainant’s mother gives evidence
The court heard the alleged victim’s mother checked on her daughter when Mr Hayne was outside talking to a taxi driver.
The mother told the court her daughter said “I think he wants to have sex but there’s no way”, to which she replied, “that’s right”.
The woman told Crown prosecutor Brian Costello that Mr Hayne seemed “hyped-up”, “excited” and “maybe intoxicated” when he walked back into the loungeroom after speaking with the taxi driver.
“[The] grand final was just ending and Jarryd Hayne came into the loungeroom and stood next to that little round table next to the chair. He looked at the TV and said ‘go Roosters, I’m jealous’ before walking away.”
About 20 minutes later her daughter came into her room in an “emotional state … confused and upset”.
“[The complainant] knocked on my door and she said that he had gone, he had got a nosebleed and that was it,” the woman said.
The next day her daughter, “passed me her phone and showed me a photo of her room with blood and she showed me a photo of her genitals,” the woman said.
“She said that he had wanted sex, that he was persistent and overbearing and that she had said she didn’t want to. She said no a number of times. She told me she thought he’d bitten her…He had ripped her pants down and bitten her and she had moved away and he went to the bathroom and cleaned himself up and left.”
Attempt to trap Hayne with text messages
The court was shown a series of Snapchat exchanges between the woman and Mr Hayne that were supervised and recorded by police on November 14 and 15, 2018, before his arrest on November 18 that year.
The woman wrote, “you knew I was definitely not OK from the damage that night. It was pretty messed up and you just left me that way. You should have stopped when I said so.”
“WTF what are you on about? I made sure your were OK and we spoke and I made sure you were OK. You’re starting to sound sus,” Hayne responded.
The complainant then said, “When I got out of the shower you said, ‘I better go,’…You didn’t show any remorse and it has really impacted me since then.”
“That is completely untrue,” Mr Hayne replied.
Six weeks after the woman reported the allegation, Police intercepted phone calls between Mr Hayne and Newcastle Knights captain Mitchell Pearce.
This was to see whether they could record any admissions by Mr Hayne. However, the former Parramatta Eels player maintained his innocence.
Mr Pearce was recorded saying, “Who’s this sheila come out saying something about ya?”
Mr Hayne replied, “she is a full blown weirdo”, and that she “wigged out”.
“I watched a bit of the grand final with her old girl” and “she was filthy because the cab’s out the front. She’s just like filthy that I left her. My fingernail must’ve just clipped [her], that’s all, it’s nothing major, like it was just a little bit,” Mr Hayne said.
Dr Susanna Smart, who had been the woman’s GP since 2016, examined the complainant on 3 October 2018.
Giving evidence before the jury, she said that she observed a 1.5-centimetre, “ragged wound” on her genitals. She also noted that the flesh was “raised” and “discoloured”.
Commenting on the cause of the injury, Dr Smart said, “Based on the examination I did and the history…it looked like it was rough sexual activity.”
Significantly, Dr Smart said that the alleged victim told her that Mr Hayne gave her oral sex and that she had said “no”.
The trial also heard from Dr Maria Nittis, who has examined more than 1,000 alleged victims in sexual assault charges.
She studied photos taken of the complainant’s injuries shortly after the alleged assault and physically examined her six weeks after the incident.
“It would have been quite painful … I think that would have bled quite considerably…I can see quite clearly that there were two lacerations present on the vagina. It’s consistent with penetration of the genitalia. We know that it’s likely to be blunt force — it’s not a knife, for example.”
However, under cross-examination by Mr Hayne’s sexual assault lawyers, Dr Nittis agreed that the injuries could have been caused “in an attempt to sexually stimulate [the victim]”.
Further, she also agreed the injuries could not imply whether or not consent was given.
Jarryd Hayne’s evidence in Court
Under questioning from his criminal defence lawyers, Jarryd Hayne said the complainant, was “keen, she was pretty up-front” in the lead-up to them meeting.
“It was a bit full-on straight away, so it was a bit awkward for me…I was just trying to get into the conversation, she was pretty straight to the point. I didn’t think she was being self-reserved, I thought she was being pretty honest.”
In one message, the woman told Hayne that she could “imagine what it would be like f***ing you” and that she had sent emojis that Mr Hayne interpreted as sexual, including a wink and water drops.
“She was obviously getting pretty steamy, so I said, ‘Send me a video,’” Mr Hayne said.
Describing his case of mind when he made his way to the woman’s house, the ex-Eels player said, “best case scenario I would be having sex with her, worst case I just introduced myself”.
When he attended her house and entered her room, the complainant was on her bed, lying on her stomach.
Mr Hayne got on the bed with her and tried to make “small talk”.
“I thought I’d play a couple of my go-to songs on YouTube,” he said.
Mr Hayne told the court he then “attempted to kiss” the complainant, who was lying in the centre of the bed.
“She kissed me back. It involved lips and tongue, mine and hers.”
Hayne then began to put his hands near the woman’s genitals, outside her pants. He said, “We’d spoken about it, she was kissing me. We’d flirted and all that sort of stuff before. She was fine, she kept kissing, I was touching her and she was fine.”
He then took the complainant’s hand and put it near his crotch. Both tried to remove the woman’s pants, with eventual success.
Mr Hayne told the court he continued to fondle the woman while she was lying next to him on the bed.
“I knew she didn’t want to have sex…So I thought I’d please her and that was it.”
Jarryd Hayne said he then performed oral sex on the woman, who was “breathing heavy, she was fine”.
It was only after 30 seconds or more that he realised she was bleeding.
“It was like a shock and I jumped up. I looked at my hand straight away and there was blood. Obviously both of us were in shock…Her first response was, ‘It’s not my period.’…(I was in) total shock, you never expect to have blood on your face.”
The ex-NRL star confirmed that he did not intend to hurt her and also didn’t think anything he was doing was going to hurt her.
Hayne subjected to vigorous cross-examination
Crown prosecutor Brian Costello pulled no punches when cross-examining Hayne. The former NRL player was accused of making up his evidence by Mr Costello.
“So, you don’t remember photos she had on Instagram, you can’t remember what photographs you sent to her over Snapchat, correct? You can’t remember the sequence of events in the order you did things … you weren’t even sure daytime or night-time? And you can’t remember the calls you made. So, you can’t remember making them, let alone what was discussed, correct?”
“Then we come to evidence in relation to another call at 7:31 [on the same night] and you give a detailed account. Why does your memory improve so much at that point? You couldn’t remember the other two phone calls at all, but you can remember this call, and what you discussed. Are you just making this up?”
Mr Hayne said, “No, I was going to Sydney. It was a pretty long trip”.
The Crown also suggested that Mr Hayne went to the alleged victim’s house “with the expectation of sex”. This was denied by Hayne.
“I am suggesting you have made up lies, or do you say you have told the truth?” Mr Costello asked.
Mr Costello also suggested that the ex-league star “did not have a clear memory of the night”, noting the amount of alcohol he had consumed. Hayne again disagreed.
“Have you made up lies to try and explain away bits of evidence in the case?” Mr Costello asked.
“I don’t understand what you think I am lying about,” Mr Hayne responded.
“She told you no and she told you stop,” Mr Costello said.
“She didn’t say it,” Mr Hayne replied.
“You forcefully pulled her pants off,” Mr Costello said.
“No. I didn’t do that,” Mr Hayne said.
As the cross-examination came to an end, Mr Costello asked Mr Hayne about the woman contacting him on Snapchat three days before his arrest.
Unbeknownst to Mr Hayne, police were recording and monitoring the conversation.
The woman told Mr Hayne that a friend had advised her to go to police about the night of the alleged assaults.
In response Mr Hayne wrote, “WTF what are you on about?” The ex-NRL star had previously said that he was “fuming” at this.
“Mr Hayne, the reason you were fuming at that point was because you knew she was going to report you or had reported you and it would affect your career,” Mr Costello said.
“I was fuming because she was full of shit,” Mr Hayne said.
Jarryd Hayne accused of bribing alleged victim
Earlier in the cross-examination Mr Costello referred to a $50 note that was found on the woman’s bed after the incident.
The Crown prosecutor asked Mr Hayne whether he had left the money to “bribe her into silence”.
“No,” Mr Hayne replied. He confirmed that what had happened that night was consensual and that the money must have fallen out when he was checking his phone.
Who is the alleged victim in the Jarryd Hayne case?
The alleged victim in the Jarryd Hayne case cannot be named for legal reasons.
This is due to a ‘non-publication order’ being in place for complainants in sexual assault proceedings.
Why was the Jury discharged in the Jarryd Hayne case?
On 4 December 2020, the jury delivered a note to Judge Whitford saying they could not reach a unanimous verdict.
After deliberating again today, the jurors said they were unable to reach a verdict after considering all the evidence.
“It is evident that we will not be able to come to a unanimous agreement. This decision has not been made lightly and no amount of time and deliberation will be able to change this.”
They jurors were then asked if they could reach a majority verdict of 11 to one.
After leaving the court for about 15 minutes, the jury returned to court and the foreman said they could not reach a majority.
The discharge of a jury does not mean that Hayne has been found ‘not guilty’. Rather, his case can be retried before another jury.
The case will return to Newcastle District Court on 16 December 2020 where it will likely obtain a fresh Trial date.
The follows the recent hung jury in the trial of NRL star Jack de Belin. Click here to read an in-depth breakdown of that case.
Sexual Assault and Consent
Section 61HE of the Crimes Act 1900 sets out the definition of consent for sexual offences:
“A person consents to sexual activity if they freely and voluntarily agree to the sexual activity.”
Some other grounds which can establish that a person does not consent to sexual contact include:
- The alleged victim was substantially intoxicated by drugs or alcohol; or,
- The consent was elicited through intimidation, coercion, or threats of force; or,
- The consent was elicited through abuse of a position of authority or trust.
A person cannot consent to sexual contact if:
- They do not have capacity to consent because of their age (ie. Under 16 years of age or under 18 years of age if a ‘special care relationship’) or cognitive incapacity;
- They are asleep or unconscious;
- They have consented because of threats or they are unlawfully detained.
Further, a person has “knowledge” about lack of consent to the sexual contact if:
- The person knows the alleged victim does not consent; or,
- The person is reckless as to whether the alleged victim consents; or,
- the person has no reasonable grounds for believing the alleged victim consents.
Importantly, a court will take into account all of the circumstances, including any steps you took to determine whether the alleged victim consented.
Sexual assault consent is a very complex area of law. The stakes for these offences are extremely high – if Mr Hayne were to be found guilty he will be facing up to 20 years imprisonment.
Charged with sexual assault?
It is important to obtain advice from a specialist sexual assault lawyer who has successfully defended hundreds of these charges.