The critical 27 minutes in Hayne’s appeal

Lawyers representing Jarryd Hayne say he could not have sexually assaulted a woman on the night of the NRL grand final in 2018 in 27 minutes, arguing the former star should be acquitted and face no further trial.

The two-time Dally M winner was found guilty of sexually assaulting the woman at her Newcastle home in the NSW Hunter Region following the high-profile trial in the NSW District Court last year.

The former Parramatta Eels fullback has continued to maintain his innocence and quickly launched an appeal against his conviction. It was the third time Hayne faced a trial over the same incident and the second time he was found guilty.

While Hayne, now 36, claims the sexual encounter was entirely consensual, the jury accepted the woman’s version of events that she repeatedly said “no” and “stop” and was left bleeding after he pulled her pants off.

The jury was told the woman refused to consent to sex because the ex-Parramatta fullback had a taxi waiting outside.

During the trial, the court was told Hayne arrived at the house at 9.07pm and left 46 minutes later, but the sexual activity did not occur until 9.26pm in the final 27 minutes of the visit.

Hayne was sentenced to four years and nine months behind bars for the charges of digital and oral sexual assault, but he will be eligible for parole in May 2025 due to time already served in custody.

Now almost one year since he was found guilty on April 4, 2023, Hayne appeared on Wednesday in the Court of Criminal Appeal via audiovisual link from Mary Wade Correctional Centre.

The appeal relies on three grounds – the first being the verdicts were unreasonable and not supported by evidence at trial, secondly, the trial judge erred in ruling the complainant did not have to give evidence about a 2021 interaction with the man she messaged the same day the jury found she was sexually assaulted in 2018, and lastly, that the judge’s ruling resulted in a miscarriage of justice.

Hayne’s lawyer, Tim Game SC, told the court everything the complainant claimed happened could not have occurred in 27 minutes.

“We say 27 minutes cannot account for it,” Mr Game told the court on Wednesday.

He told Justice Anthony Meagher SC, Justice Stephen Rothman and Justice Deborah Sweeney that the complainant, who cannot be identified for legal reasons, had deliberately concealed evidence and tried to delete messages between herself and a friend.

Mr Game argued that concealment was “the same as lying or deception”, saying the woman concealed evidence on “a large scale”.

He told the court the complainant concealed the texts and social media messages because it showed she was “actually consenting”.

The court was told the complainant first told a friend on social media, whom she had never met in person, about the sexual encounter but did not tell the woman it was non consensual.

The complainant also did not disclose to police that the social media friend knew of the sexual encounter between the victim and Hayne.

“It is evidence of dishonesty and it also goes to her credibility on a general sense,” Mr Game said.

He argued the miscarriage of justice arose from the defence being barred from cross-examining the woman on the undisclosed texts, with the woman claiming she deleted messages “all the time”.

Crown prosecutor Georgina Wright SC told the court the complainant didn’t tell the woman about the assault because they were not known to each other.

“She had never spoken to her and had never met her and said she did not know her at all well,” Ms Wright said.

Mr Game told the court that the Crown had brought a problem “on their own heads” when they argued the complainant should not be cross-examined on her not disclosing the evidence to police.

“Why should he go for a fourth trial? We say this is a case where you wouldn’t order a retrial. Given the only alternative is to acquit, you should do so,” Mr Game said.

The court was told the complainant had messaged the same social media friend on Facebook in 2021, following the appeal saying she did not disclose the assault because it was “disgusting and confusing” for her.

“I have never done anything to you and for you to write something to JH about me having him over does not excuse what happened,” the message read.

“If he gets out you can thank yourself. This has been the hardest most painful thing I’ve ever been through and you can thank yourself for helping a guilty person.”

Mr Game argued the complainant wanted to get rid of evidence that showed she was “actually consenting”.

But the Crown prosecutor told the court the complainant confided in “similar” ways to five other people, and spoke of the non-consent.

“The fact she didn’t tell (the social media friend) paled into insignificance,” Ms Wright said.

In documents tendered to the court, his lawyers claim the jury reached “unreasonable” verdicts, arguing the complainant was “changeable”.

They argued there was evidence the complainant’s version did not account for the 27 minutes after the grand final and before Hayne left her home, and what she said after the incident was “inconsistent with forcible rape”.

“After the complainant became aware that the matter would be investigated by the NRL and then the police she curated critical evidence,” the defence documents state.

“The complainant’s evidence lacked credibility for reasons which are not explained by the manner in which it was given, such that a reasonable doubt experienced by this court is a doubt which a reasonable jury ought to have experienced.”

But the Crown submissions argue the appeal should be thrown out entirely and claim there is no possibility that Hayne was an “innocent person” who was convicted.

The Crown argues in the documents the woman was “consistent, open and straightforward” in her evidence in each trial.

The judges have reserved judgment.