Imprisoned former NRL star Jarryd Hayne should be acquitted or at least prosecuted again for a series of problems convicting him of sexual assault, his appeal has been told.
Haynes’ lawyer Tim Game SC told the NSW Court of Criminal Appeal on Monday that his trial judge gave instructions to the jury that were “deficient in almost every possible way”.
The former representative player faced a retrial after his first ended up with a hung jury, and was found guilty of assaulting a woman in her NSW Hunter room on the night of the 2018 NRL Grand Final.
Hayne, 33, first stopped attacking the 28-year-old victim when she started bleeding while performing a series of sexual acts on her, not when she asked him to stop, the judge said.
He was jailed in May for five years and nine months with a non-parole period of three years and eight months.
Mr. Game outlined four main grounds of appeal, including “the jury’s judgment in both cases was unreasonable”.
He also said that Judge Helen Syme failed to give certain instructions to the jury, which he described as “very problematic”.
Words like “can” and “can” confuse the legal issues, and a jury could not be satisfied beyond any reasonable doubt by judging him, said Mr. Game.
Prosecutor Brett Hatfield did not say the judge’s instructions were erroneous, but rather the language could have been tighter and that “perfection is not required”.
Sir. Game says there was plenty of evidence that showed the victim had a “persistent interest in having sex with Jarryd Hayne,” and the Crown ran the hand with his case in a number of ways.
The defense attorney also took precedence over “very damaging” evidence recorded in the second trial of an exchange between a lawyer and the victim while she was being cross-examined in the first trial.
The effect of that would likely elicit a “very sympathetic response” from the jury to her, he said.
But the Crown argued that the woman seemed very deflated and flat immediately after this exchange, and her numb and monotonous reactions would be incongruent, without the jury witnessing what had happened moments earlier.
In March, Hayne was acquitted of two counts of aggravated intercourse without consent, inflicting actual bodily injuries related to bleeding that the woman sustained during the incident.
In pre-recorded evidence, the trial was told how he let his friends drink to a buck party to meet the woman.
Hayne testified that the woman had become “dirty,” and he knew she did not want sex after she found out he was leaving a taxi waiting outside, but that he would “please her” in other ways.
The Crown successfully claimed that Hayne had no reasonable cause to believe that the woman would have consented to sexual activity that night.
Hayne’s appeal against his conviction continues while he watches via video link.