Lawyers for former NRL star Jarryd Hayne have accused the woman he raped of deleting text messages that pointed to his innocence, as part of a bid to have him released from jail.
Hayne's lawyers argued on Wednesday that text and social media messages deleted from the woman's phone amounted to deliberate concealment of the facts.
They asked the NSW Court of Criminal Appeal to acquit Hayne on those grounds, rather than order the 36-year-old face a fourth trial.
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 the 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 her house.
Hayne's barrister, Tim Game SC, told the court the woman had deleted messages between herself and Hayne which demonstrated she had initially shown a sexual interest in him.
Hayne's defence team also argued the woman should have been 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 requests for the woman to be cross-examined on the statement, saying it carried “almost infinitesimal weight".
Crown barrister Georgina Wright SC said the woman had explained she regularly deleted text messages and had not been selective about what was deleted in order to "curate the narrative", as was argued by Hayne's lawyers.
Mr Game argued messages from the victim to another woman she had met on social media also did not contain mention of a sexual assault and she therefore took actions to conceal them also.
He argued failing to come forward with the messages amounted to "systematic curation of evidence of material that didn't assist her case".
"On our case, it is concealment of evidence on a large scale," he said.
“We say concealment, of course, is the same as lying or deception."
Ms Wright argued the victim did not have a close relationship with the woman, which explained why she would not have informed her about being raped.
The woman had said rather than concealing messages, she had not mentioned the sexual assault because it was "disgusting and confusing" for her.
The victim did make complaints to five other people which were “remarkably similar" to the fact Hayne was "rough and pushy, and she asked him to stop", the court was told.
“All of those complaints supported her reliability and her honesty as to her account of sexual assault," Ms Wright said.
But Mr Game said the defence had been forced to argue their case with "one hand or two hands tied behind their backs”.
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.
The court has reserved its decision until a later date.
1800 RESPECT (1800 737 732)
National Sexual Abuse and Redress Support Service 1800 211 028
