Former NRL star Jarryd Hayne is hoping to overturn a conviction for raping a woman on the night of the 2018 grand final as a second appeal gets under way in the NSW Supreme Court.
Hayne's lawyers argued on Wednesday that text and social media messages deleted from the victim's phone amounted to deliberate concealment of the facts.
They asked the Court of Criminal Appeal to acquit Hayne on those grounds, rather than order the 36-year-old face a fourth trial over the matter.
Hayne, who watched the appeal hearing via a video link from jail, was found guilty on two counts of sexual intercourse without consent over an incident at a woman's home near Newcastle on September 30, 2018.
Previous trials heard the woman, who cannot be identified for legal reasons, changed her mind about having sex with Hayne after realising he had a taxi waiting outside the house.
Hayne's barrister, Tim Game SC, told the appeals court the defence had been unable to cross-examine the woman during the most recent trial on facts that might have been crucial to the case.
Messages from the victim to another woman she had met on social media did not contain mention of a sexual assault and she therefore took actions to conceal them, he said.
Mr Game argued failing to come forward with the messages amounted to "systematic curation of evidence of material that didn't assist her case".
"The things she forgets are the things that don't help her," he said.
"On our case, it is concealment of evidence on a large scale.
"We say concealment, of course, is the same as lying or deception."
Crown prosecutors argued the victim did not have a close relationship with the woman she was messaging and had never met her in person.
They also pointed out the woman appeared as a witness in the third trial and the jury was in a position to weigh her evidence as they saw fit.
The fact that the victim had not told the woman she had been sexually assaulted "paled into insignificance" to the complaints she made to others, the court heard.
She told a friend "I'm too scared to report it" and asked her mother not to tell anyone as she did not want to be in the public eye.
She also discussed the incident with her GP at length and said she did not want to go to police.
But Mr Game said the defence had been forced to argue their case with "one hand or two hands tied behind their backs".
Hayne's defence team also argued the woman should be cross-examined on why she allegedly told police, "if those message get out, I'm f***ed and he will get off".
Judge Graham Turnbull, who oversaw Hayne's third trial, refused for the woman to be cross-examined on the statement, saying it carried "almost infinitesimal weight".
Mr Game argued the statement was evidence the woman appreciated the significance of the text messages and did not want them to get out.
Hayne was charged in November 2018 after the rape allegations reached the NRL's integrity unit.
He has been behind bars since April 2023 after a jury ruled he sexually assaulted the woman using his hands and mouth.
The guilty verdict followed a hung jury in his first trial in 2020 and a previous appeal overturning the 2021 guilty verdict from his second trial.
1800 RESPECT (1800 737 732)
National Sexual Abuse and Redress Support Service 1800 211 028
Australian Associated Press
