Jarryd Hayne imprisoned after sexual assault convictions

Last week, Jarryd Hayne was again found guilty of sexual assault in Newcastle on the evening of the 2018 grand final by a jury.

This followed two previous trials, in which the first ended in a hung jury, and the jury in his second trial found him guilty of performing oral and digital sex on the complainant without her consent. That conviction was set aside on appeal with a re-trial ordered.

In the third trial, Hayne once again pleaded not guilty to sexually assaulting the Newcastle woman on the evening of the 2018 grand final.

In Chamberlain v. R. (1983) 153 C.L.R. 514, Brennan J noted that:

“In England, where the Court of Appeal is vested with a statutory power to grant bail pending an appeal from the Crown Court, the modern practice is to grant bail pending an appeal only where it appears prima facie that the appeal is likely to be successful or where there is a risk that the sentence will have been served by the time the appeal is heard (Watton (1978), 68 Cr.App.R. 293, at pp. 296, 297). In Australia, in the various States where a statutory power to grant bail pending an appeal exists, the circumstances in which the power will be exercised have been described in general terms as “very exceptional” (Re Kulari, [1978] V.R. 276). “exceptional” (R. v. Ryan, [1930] S.A.S.R. 125; R. v. Patmoy, (1944) 62 W.N. (N.S.W.) 1; R. v. Lawrence, (1978) 22 A.L.R. 573; R. v. Wood, [1970] Q.W.N. 3), “exceptional or unusual” (R. v. Byrne, [1937] Q.W.N. 30), or “special” (R. v. Salon, [1952] Arg. L.R. (C.N. 7) at p. 1054; Reg. v. Southgate, (1960) 78 W.N. (N.S.W.) 44).”

In Maher, Ex parte [1985] QSCFC 113, it was noted that:

“A long line of cases (sufficiently instanced by Watton (1978) 68 C.A.R. 293 and the decision of this Court in R. v. Wood [1970] Q.W.N. 3) demonstrates the attitude that after conviction, bail should be granted only “in exceptional circumstances””.

Like in Queensland, it is necessary for a criminal defendant in NSW to demonstrate exceptional circumstances in order to be granted bail post-conviction.

In R v Kelly (Edward) [1999] 2 Cr App R(S) 176, Lord Bingham of Cornhill stated that the word ‘exceptional’ is an ordinary familiar English adjective and not a term of art:

“It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”

Subsequent to his convictions, Hayne’s bail has today been revoked, before he is due to be sentenced.

Importantly, it was accepted by Prosecution and Defence that further time in prison in addition to that served after his first conviction was inevitable.

Justice Button in making his decision noted that Hayne had ‘committed extremely grave sexual offences’ and described the initial decision to let him remain at liberty as being one made ‘remarkably, in my opinion’:

“Within the criminal justice system it is established Mr Hayne is a person who committed two extremely grave sexual offences”

Justice Button added that Hayne’s “incarceration is inevitable” and that “the fact is all prisons are inherently places of deprivation of liberty.”

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