ONE hung jury, two convictions, both later quashed, and if prosecutors decide to press on again then former NRL star Jarryd Hayne will join a short list of defendants in NSW who have gone on trial four times for the same alleged crime.
Subscribe now for unlimited access.
or signup to continue reading
What happened inside the bedroom of a home in the Hunter on the night of the 2018 NRL grand final has become one of the most scrutinised events in recent NSW criminal history.
It's been picked over, pulled apart, examined and investigated by three juries and two benches of the Court of Criminal Appeal.
And last week, after the CCA again quashed Hayne's convictions for two counts of sexual intercourse without consent and he was granted bail, the question remained; would the DPP prosecute the 36-year-old former NRL star again?
If they do then it will be the fourth time Hayne has faced trial since 2020.
The first trial in Newcastle District Court ended when the jury was unable to reach a unanimous or majority verdict.
It was during that trial that the alleged victim gave evidence about what she said happened inside her bedroom the night Hayne dropped in on his way to Sydney.
Her evidence was recorded and played during the next two trials, held in Sydney's Downing Centre District Court in 2021 and 2023.
The second trial ended with the jury acquitting Hayne of two counts of aggravated sexual assault, but finding him guilty of the alternative charges of sexual intercourse without consent.
He was later jailed for a maximum of five years and nine months, with a non-parole period of three years and eight months.
But after serving nine months, Hayne was granted bail after the CCA quashed his convictions, finding a judge's erroneous direction to the jury had led to a miscarriage of justice.
Hayne went on trial again in 2023 and was again convicted of two counts of sexual intercourse without consent. This time he was jailed for a maximum of four years and nine months, with a non-parole period of three years.
Still fighting to clear his name, Hayne's lawyers appealed again and last week, after serving another year behind bars, his convictions were quashed and he was granted bail.
The CCA had upheld the appeal against his convictions in a majority 2-1 decision and ordered a new trial.
This time, the reasons for Hayne's convictions being overturned came down to the trial judge's refusal to allow the defence to cross-examine the alleged victim about her interactions with others on the day of the incident and its aftermath.
The jury had been "deprived of evidence", which created an unfairness in the trial and led to a miscarriage of justice, the CCA found.
However, this time the court did not endorse another trial, and said it is up to the state's top prosecutor to decide.
"While there may be very good reason why, in circumstances where an accused has suffered three trials and already served significant time in prison, a new trial may not be warranted, in my view, that is a consideration that should be left to the Director of Public Prosecutions," Justice Stephen Rothman said.
Justice Deborah Sweeney, who upheld Hayne's appeal and said there was a "significant possibility that an innocent person had been convicted", agreed.
"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," Justice Sweeney said. "I appreciate that is a decision for the Director of Public Prosecutions."
The Office of the DPP said in a statement: "The ODPP will consider the Court of Criminal Appeal's judgment. Any decision about a possible retrial will be made in accordance with the Prosecution Guidelines."
An accused person going on trial four times for the same offence is not unheard of in NSW, although it appears a very short list.
In one case in 2017, a defendant seeking a permanent stay after two hung juries and a successful appeal to the CCA labelled the prospect of a fourth trial "harassment or tyranny" and said it would "stretch the community's sense of fair play".
The application was refused and the man was ordered to face trial again.
In Hayne's case it is a question of fairness, of potential abuse of process and whether a fourth trial would be in the public interest.
The DPP have until July 26, when the matter is back in court, to make a call.
No doubt, the views of the alleged victim will be taken into account.
After the 2023 trial and convictions, the woman had labelled the then-five year saga "a never-ending nightmare".
"After going through the first and second trials, I was hoping this would all be over, and I could finally try and move on with my life," the woman said in a victim impact statement after the third trial.
What is clear is that, either way, there are no winners and that includes the DPP.
Whatever decision they make is a lose-lose proposition and they will no doubt face more criticism.
