Director of Public Prosecutions (NSW) v Hayne
[2023] NSWSC 377
•14 April 2023
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: DPP (NSW) v Hayne [2023] NSWSC 377 Hearing dates: 14 April 2023 Date of orders: 14 April 2023 Decision date: 14 April 2023 Jurisdiction: Common Law Before: Button J Decision: Detention application granted, bail revoked
Catchwords: CRIME — bail — detention application – respondent found guilty of two counts of sexual intercourse without consent against adult victim – bail continued after delivery of verdicts – whether “special or exceptional circumstances” established individually or in combination that “justify” continuation of bail – significant mainstream media and online interest due to respondent being former professional football player – various factors relied upon – difficulty in preparing proceedings on sentence – effect on family of incarceration of respondent – conditions of custody – short remand – absence of unacceptable risks – special or exceptional circumstances justifying continuation of bail not established either individually or in combination – bail revoked
Legislation Cited: Bail Act 1978 (NSW) s 22B
Cases Cited: DPP (NSW) v Van Gestel [2022] NSWCCA 171
Category: Principal judgment Parties: Rex (Applicant)
Jarryd Lee Hayne (Respondent)Representation: Counsel:
Solicitors:
B Hatfield (Applicant)
M Cunneen SC with C O’Neill (Respondent)
Solicitor for Public Prosecutions (Applicant)
MacDougall & Hydes Lawyers (Respondent)
File Number(s): 2023/117024
REVISED EX TEMPORE JUDGMENT – Detention application
Background
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The background to this matter is that on 4 April 2023, Mr Hayne, the respondent, was found guilty by a jury of two counts of sexual intercourse without consent, knowing that the victim was not consenting. That means that: the time-honoured and constitutionally entrenched tribunal of fact was satisfied that those offences had been proven beyond reasonable doubt; the presumption of innocence has been overcome; the strength of the Crown case is now irrelevant; and, for all purposes within the criminal justice system, it is established that Mr Hayne is a person who committed two extremely grave sexual offences.
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It also means that, as is agreed at the Bar table, incarceration is inevitable, despite his previously having served some time in prison for the same offences. I respectfully agree with that joint position.
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Remarkably, in my respectful opinion, in that context, Mr Hayne has remained at liberty since then, albeit on strict bail.
Application
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The matter is before me today because the Crown has sought to have Mr Hayne detained; in other words, refused bail.
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The application is de novo. To translate that into plain English, I do not need to search for error in the judgment of the learned District Court Judge - whose judgment is not available in any event - but simply must consider the matter myself afresh.
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Although the Bail Act 1978 (NSW) commands me separately to reflect upon any unacceptable risks, the Crown does not rely on that and, accordingly, I will not pause to consider it.
Discussion
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The focus of the parties has been on the relevant portion of s 22B of the Bail Act. That portion is reasonably new. It requires Mr Hayne, in circumstances such as these, to establish special or exceptional circumstances justifying his release, either separately or in combination. I have reflected upon the case law that has developed since that portion of the section commenced, including DPP (NSW) v Van Gestel [2022] NSWCCA 171 and its references to other, earlier aspects of the section.
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Five matters are relied upon.
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One, I respectfully think, can be put to one side. It is not special or exceptional for logistical problems to be encountered in preparing proceedings on sentence, although I accept that some will be encountered if Mr Hayne is in prison, including in strict custody. I dare say that all proceedings, in particular criminal proceedings, are easier to prepare if one's client is at liberty. I also believe that any such difficulty will be able at the least to be managed, if not overcome, by the legal team of Mr Hayne.
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That factor is put to one side by me, on its own and in combination.
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Separately, the position of Mr Hayne and his family personally is relied upon.
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Further background is that Mr Hayne is a former, very successful, professional rugby league player. Undoubtedly, there has been significant media interest in this matter, which I accept has been intrusive and, on occasion, distressing. There has also been significant online interest. All of that, I accept, has been adding to the distress of all those who love and support Mr Hayne, and no doubt to his distress as well.
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But the fact is that the media very often takes a significant interest in criminal proceedings, in my experience, especially those involving homicide and, as here, sexual violence, whether against children or adults.
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It is also the fact that whenever a loved person is incarcerated, enormous heartache is caused to others.
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Furthermore, the regrettable reality is that since the invention of the internet in general, and social media in particular, there are many people who see fit to express hurtful, offensive, and even unlawful opinions about others online.
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If there is a question of the family feeling unsafe as a result of all of that, I believe other steps can be taken as needs be that do not require Mr Hayne to be at liberty.
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The same may be said of other logistical changes that are foreshadowed in the life of the family: they can be managed in Mr Hayne's absence.
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Finally on these related points, Mr Hayne's former profession has exacerbated, certainly, the media and online interest in these proceedings, which have, undoubtedly and most regrettably, been extended. But it is a common feature of the criminal justice system that greater interest is shown in proceedings that feature famous (or formerly famous) people.
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In my opinion, none of those factors are special or exceptional so as to justify Mr Hayne remaining at liberty.
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A further matter relied upon is that, for a time at least, if incarcerated today Mr Hayne will be held in strict conditions of custody that will be very limiting, for his own protection. But the fact is that all prisons are inherently places of deprivation of liberty, and within them different levels of restriction are necessarily applied, including when persons are at risk. If Mr Hayne should otherwise be in custody, that circumstance can hardly stand in the way of it. This factor, in my respectful opinion, does not constitute a special or exceptional circumstance justifying release.
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The fourth factor relied upon is that Mr Hayne does not pose a bail concern or, to use the statutory term, “an unacceptable risk”, as the concept is understood in the Bail Act, and that position has pertained over many years. So much may be accepted. But Parliament has explicitly imposed an entirely different test in these circumstances. And in truth, if Mr Hayne did pose or constitute an unacceptable risk, he would be incarcerated in any event.
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That factor, in my respectful opinion, is not special or exceptional. And in any event, the offences proven against Mr Hayne are what themselves enliven the section.
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The final matter relied upon is that the remand period is only 25 days away. But that argues both ways, in my opinion. By that I mean, if there were some extraordinary delay in resolution anticipated, that might argue for release, especially if a person might be incarcerated, bail refused, longer than any sentence that one might expect to be imposed. That is hardly the case here.
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The fact that Mr Hayne is now on bail, ten days after having been found guilty of very grave offending, and less than a month before his proceedings on sentence are expected to conclude, cannot constitute special or exceptional circumstances justifying a release to bail as at today.
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In short: I do not regard any of the matters individually relied upon by Senior Counsel for Mr Hayne as constituting special or exceptional circumstances justifying release now.
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Finally, considering all of those factors in combination, my respectful evaluation is that the position of Mr Hayne and his family can, at most, be holistically thought of as unusual. But that falls well short of special or exceptional circumstances, and certainly short of justifying Mr Hayne being further at liberty, in the context that I set out at the beginning of this judgment.
Conclusion and orders
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It follows from my findings that the detention application must be upheld. Bail is revoked. Mr Hayne must wait with the sheriff's officer please, for the prison officers to take him into custody.
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Amendments
17 April 2023 - Paragraph 8: changed "replied" to "relied".
Paragraph 20 last line : changed "constitutional" to "constitute".
Decision last updated: 17 April 2023
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