Two years after he was charged with the sexual assault of a 19-year-old, NRL player Jack de Belin's ordeal will continue as a jury has been unable to reach a unanimous verdict on the charges against him.
Mr de Belin and a reserve grade rugby league player, Callum Sinclair, endured a 4 week trial for a number of counts of aggravated sexual assault charges.
The pair claimed the encounter was consensual while the complainant said it was anything but.
The court saw evidence of bruising to the alleged victim which she said was occasioned as a result of the incident.
Mr De Belin's criminal defence lawyers suggested her evidence was not credible and highlighted issues with he memory as well as inconsistencies between the various prosecution witnesses.
The case will be in Wollongong District Court again on Wednesday, 2 December 2020 where it will likely receive a date for a retrial.
Jack de Belin charged with sexual assault
29-year-old Jack de Belin was charged with aggravated sexual assault along with his co-accused, 23-year-old Callum Sinclair.
Police alleged that de Belin and Sinclair met the 19-year-old complainant at a Wollongong nightclub.
She left with the pair believing that they were headed to another club in the early hours of 9 December 2018.
However, the alleged victim said they ended up at a North Wollongong unit because de Belin had "to charge his phone".
She initially told the men that she would wait outside the apartment before asking to use the bathroom.
Police allege that while on the toilet in a bedroom ensuite, de Belin walked in naked and began showering - causing her to go back to bedroom.
There she saw a clothed Sinclair. De Belin then untied her top from behind and pushed her onto the bed.
She told a jury that she covered herself and repeatedly said, "no, stop" while the league players said "show us your tits".
De Belin is then alleged to have removed the rest of her clothes before spreading her legs open and getting on top of her with his hand around her neck. Then he had intercourse.
She claimed that she "was just going dead and numb inside and just let it happen.I only weigh 51 kilograms - they're twice the size of me."
De Belin and Sinclair supposedly took turns while "cheering each other on."
"I just had tears out of my eyes the whole time," she said.
When Sinclair left the room, de Belin commenced a second assault while she was screaming "stop" due to the pain.
The woman claimed she told Sinclair that she didn't want "any of this to happen", before de Belin asked her why she was "being so emotional" and told her she couldn't "tell anyone about this".
The trio ordered an Uber back into Wollongong's CBD with de Belin allegedly handing the woman a $50 note "for the Uber and to keep your mouth shut", she said.
Complainant's evidence begins to unravel
However, under cross-examination from de Belin's criminal lawyers for sexual assault charges, a number of inconsistencies came to light.
Her evidence in Court and in a statement to Police was that de Belin had led the group to a North Wollongong unit "to charge his phone".
However, internal Police documents that were obtained by subpoena revealed that the woman had initially told Police that they trio went to the apartment because of Mr de Belin and Mr Sinclair wanting to get changed before going to another nightclub.
De Belin's lawyers described this as a "fundamental shift" in the woman's evidence.
The woman also first told Police that both Mr Sinclair and Mr de Belin forcibly removed the woman's shorts, whereas the later statement only alleged Mr de Belin had done this.
Criminal defence lawyers for the pair highlighted a "V" gesture meaning oral sex that the complainant made to the players.
This was captured on the club's security footage. However, the complainant claimed that she didn't recall making the gesture when cross-examined.
However, Crown prosecutor David Scully told the jury, "She's not a robot, she doesn't have a photographic memory . it's utterly unsurprising that she would not remember every moment, every movement on the dance floor.She is allowed to get dressed up, she's allowed to go out and she's allowed to dance. She's even allowed to have a fun kiss with Mr Sinclair, if that's what she wanted to do."
Clinical associate professor Ann Ellacott gave evidence in the Trial and testified to examining the complainant hours after the alleged incident.
She was working in Wollongong hospital's sexual assault unit on 9 December 2018 when the 19-year-old attended.
Professor Ellacott told Wollongong District Court that she observed the woman to have red marks on her chest and a bruise on her neck hours after she says she was raped by the footballers.
Dr Ellacott said the woman had areas of redness and tenderness on her chest just below her clavicles.
She also had a "superficial" abrasion or graze on the back of her right shoulder and a linear 1.6 centimetre bruise to the right-hand side of her neck towards the lower front.
While there were no injuries to the genital region, the professor said that such injuries occurred, "in the minority of sexual assaults".
"The redness can be caused by many things," Dr Ellacott said. "With her history of having had an arm around her neck . that could have caused it."
However, under cross-examination the professor accepted that the bruising could have been also been occasioned from friction, sunburn, and poor-fitting clothes.
Jack de Belin's evidence in Court
Giving evidence before the jury, Jack de Belin said that from about 1pm on 8 December 2018, he consumed half a bottle of wine and three to four other drinks over three hours at his then-teammate Euan Aitken's house.
He then travelled to the North Wollongong Hotel where he had another four or five drinks. The group then departed for Mr Crown, a nightclub, just before 11pm where he had another three or four drinks.
The St George Illawarra Dragons player rated his intoxication, "six to seven out of 10."
When he saw the complainant on the dancefloor she came up and gave him a "cuddle". Mr de Belin said, "Aren't you a little cutie?"
Asked to describe her, de Belin said, "She was very attention seeking and her dancing was dramatic and over the top," and that she appeared interested in his co-accused, Callan Sinclair.
After the pair had been dancing with the woman for a while, de Belin told Sinclair, "I think we are on here."
"I went to her and said, 'Me, you and Cal' at which she responded, 'But you have a girlfriend' and then I said, 'I can keep a secret if you can' at which point she winked back and smiled," said the NSW origin representative.
The woman remained in their company and made a "V" signal to him and Mr Sinclair, which he interpreted as an allusion to oral sex. This was captured on CCTV footage.
Mr de Belin also said he saw the 19-year-old laugh when Mr Sinclair touched her breasts.
"I asked her if she wanted to come back to the apartment with us and she replied, 'Yes'."
Once they had entered the apartment, Mr de Belin said he took off his clothes to have a cold shower while the complainant was in the toilet.
When he came out he saw the woman kissing Mr Sinclair and he joined in.
"Me and Cal were complimenting her on her breasts as well and she took her top off for us," Mr de Belin said.
The alleged victim then sat on the bed and he started kissing her again.
Mr de Belin said he took the woman's shorts and underpants off and placed them at the foot of the bed. She then noticed someone at the door.
Mr de Belin said he saw his cousin's roommate, Troy Martin, standing in the doorway and got up and left the room, closing the door behind himself.
"I said something like, 'F***, sorry about that. We are just using Jakie's room. Hope we didn't wake you up. And Mr Martin said, 'No worries mate'".
He said he then returned to the bedroom, closed the door and said, "All sorted guys," before resuming.
Mr de Belin said he then performed oral sex on her and he believed she was "enjoying it".
The trio began to have sex but Mr Sinclair struggled to maintain an erection and went to the bathroom while he and the complainant continued.
Mr de Belin said he offered to "clean her up" after they had finished but the woman declined and went to the bathroom.
He said he went to have a shower and the complainant walked out to get dressed.
The Dragons forward said while he was in the ensuite he heard the woman say to Mr Sinclair, "Oh my god, he has got a girlfriend."
He said as he walked back into the bedroom he said to the woman, "don't stress it babe, we're on the rocks anyway, it's complicated".
The three persons then left the apartment together and ordered an Uber ride and were dropped back into town and walked towards the Fever nightclub.
Jack de Belin said he met some friends in the line outside the nightclub and a little later he noticed the complainant had gone.
Crucially, when asked by his sexual assault lawyers, "At any point during any of the sexual activity that you have described did you ever believe the woman did not consent?"
Mr de Belin replied, "No, I did not."
Roommate changes evidence in Court
The Court heard that the Dragons prop sent his cousin a text message saying "PS I broke into your apartment last night Trog (Troy) was there aha whoops".
Mr de Belin's criminal defence lawyers argued that the message showed an inadequacy in the Police investigation.
It was one of three occasions early on in the investigation where Police had evidence that a fourth person was inside the apartment at the time of the incident.
This of course cut against the complainant's statement to police where she claimed only herself, de Belin and Sinclair were in the apartment.
Further, when police interviewed two of the alleged victim's workmates, they said that the complainant had told them she saw another person inside the apartment.
Mr Martin admitted he lied to police when he initially told them he had woken briefly to some noises before going back to sleep.
He said he had withheld the truth for a few reasons.
"The first one obviously being that I didn't want to be a part of what I had witnessed, which now has worked out . worse. The second reason, I also knew that Mr de Belin had a partner, and I didn't want to be the responsible one for telling that he was cheating on her."
"This is not a court of morals"
Mr de Belin's lawyers for sexual assault charges accepted that the jury may not view their client in the best light. At the time of the incident, the prop's partner was pregnant with his child.
"He conducted himself in a way that was morally wrong, he knows that. He cheated on his partner; he knows that. He should have been more responsible, he knows that. He should have been more respectful, he knows that."
But they said that did not equate to a criminal offence.
"This is not a court of morals; you are not called on to make a judgement about morals."
Police were cross-examined about their failure to provide the defence with the internal documents that showed inconsistencies in the complainant's accounts.
Mr de Belin's criminal defence lawyers put to Senior Detective Adams, "You buried it because it didn't assist the complainant to have her giving inconsistent accounts."
Adams responded, "I didn't bury it at all."
The officer also denied that he had, "denied the jury the opportunity to know that there was this inconsistent utterance of the complainant," although he acknowledged that "in hindsight," it would have been important to disclose this information.
The Senior Detective also accepted that he was obliged to disclose inconsistent accounts in the woman's evidence to both the prosecution and defence team and that he had not done this.
The court also heard that Detective Adams failed to did not make a recording of any of the woman's evidence when she and a work colleague attended Wollongong Police Station together on the afternoon of 9 December 2018.
When asked to explain why he hadn't recorded her evidence, the detective of 14 years' experience said, "I just didn't."
By contrast, Mr Sutton had only been a detective for six months at the time.
When asked, "given the added experience you now have" whether he would have taken notes during an initial interview when dealing with a rape allegation, Constable Sutton said, "As the officers in charge, I would have taken notes, yes."
Detective Senior Constable Sutton, who became the officer in charge of the investigation at a later date also admitted that he failed to make any notes of the initial conversation with the woman.
The officers further agreed that they should not have allowed the woman's workmate to hear the alleged victim's evidence to police. Detective Senior Constable Sutton had earlier conceded there was a risk the workmate's evidence would be affected by what she heard.
This is a legal concept known as 'confabulation'.
Police breach legal privilege
It was also revealed throughout the trial that Police had accessed legally privileged material on Mr de Belin's phone.
Detective Senior Constable Sutton agreed that he had served, "what was plainly privileged material," in the brief of evidence.
"That shouldn't have happened, should it?" Detective Sutton was asked.
He replied, "the serving of the material? In hindsight, no."
Further, Detective Adams admitted to scrolling through messages from the St George Illawarra player's seized Nokia mobile phone in December 2019.
However, under cross-examination from Senior Counsel, the officer denied speaking to Mr de Belin's accuser about the content of those messages.
It was suggested that Police, "were looking through that material . in the hope that there may be in that material something that could undermine the defence of Jack de Belin."
This was also denied by the Senior Detective.
Legal privilege protects all communication between a person and their lawyers from being seen by anyone else.
Police officer in Jack de Belin case admits to lying in Court
In February 2020, Senior Detective Adams gave evidence before Wollongong District Court where he admitted to lying under oath.
The officer had previously claimed he was not aware of any messages on de Belin's phone to and from his lawyer about the rape case.
It was put to Senior Detective Adams that, "You gave false evidence to his honour under oath, didn't you?"
The Senior Detective answered: "Yes."
During the trial, it was put to the officer that he had, "wilfully lied to the court". Adams again answered, "Yes."
Crown prosecutor David Scully told the jury that the police misconduct was a 'red herring' and should be given little weight in their deliberations.
However, de Belin's lawyers told the jury that, "It is important for you to know that he (Detective Adams) is a dishonest person who was forced to admit that he wilfully lied on oath."
Who is the alleged victim in the Jack de Belin case?
The alleged victim in the Jack de Belin case cannot be named for legal reasons.
This is due to a 'non-publication order' being in place for complainants in sexual assault proceedings.
Why was the Jury discharged in the Jack de Belin case?
On 30 November 2020, the jury sent a note to Judge Andrew Haesler. The foreperson advised the judge that they had been unable to reach a unanimous verdict, despite carefully considering the evidence.
Judge Haesler urged the jury to go back over all of the evidence in the case and "give renewed, but calm and rational attention to the evidence."
At this stage the jury had only been deliberating for a little over one day.
Judge Haesler gave the jury a 'Black direction'. This comes from the decision of Black v The Queen (1993) 179 CLR 44.
"Long experience has shown that even where there are stark divides and differences between jurors in certain stages in their deliberations, they often can reach unanimous agreement if given more time to consider the evidence and issues in dispute," said Judge Haesler.
However, just a few hours later the jury returned advising that they were still unable to come to a unanimous decision.
At this stage, Judge Haesler discharged the jury, saying he had watched them, "carefully and conscientiously engage with the evidence".
The discharge of a jury does not mean that de Belin has been found 'not guilty'. Rather, his case can be retried before another jury.
The case will return to Court on 2 December 2020 where it will likely obtain a fresh Trial date.
Given the backlog of cases at Wollongong District Court, it is likely that Mr de Belin and Mr Sinclair will have to wait 6-9 months to obtain a retrial date.
Aggravated sexual assault charges
Under Section 61J of the Crimes Act 1900 (NSW), aggravated sexual assault is defined as engaging in sexual intercourse with another person without their consent, while a circumstance of aggravation existed.
You can beat an aggravated sexual assault charge in two ways. Firstly, the prosecution must prove beyond reasonable doubt:
- You engaged in sexual intercourse with the complainant, and
- The complainant did not consentto the sexual intercourse, and
- You were aware (or should have been aware) that the complainant was not consenting; and
- That a circumstance of aggravation existed at the time of the sexual intercourse.
Sexual intercourse is defined in Section 61HA of the Crimes Act 1900 (NSW) as:
- penetration of the genitals of a female by the body of another person or an object manipulated by another person; or
- Penetration of the anus or mouth of any person by the body of another person or an object manipulated by another person; or
- Cunnilingus (oral sex).
The following are circumstances of aggravation:
- at the time of, or immediately before or after, the commission of the offence, you intentionally or recklessly inflicted actual bodily harm on the alleged victim or any other person who was present or nearby;
- at the time of, or immediately before or after, the commission of the offence, you threatened to inflict actual bodily harm on the alleged victim or any other person who was present or nearby by means of an offensive weapon or instrument;
- you were with another person or persons;
- the alleged victim was under the age of 16 years at the time of the offence;
- the alleged victim was under your authority;
- the alleged victim had a serious physical disability or cognitive impairment;
- you broke into and entered any dwelling-house or other building with the intention of committing the offence or another serious indictable offence;
- you deprived the alleged victim of his/her liberty for a period before or after the offence
In Mr de Belin and Mr Sinclair's case, the circumstance of aggravation was that they were with each other. This is known as being 'in company'.
The following are some defences to aggravated sexual assault that can be used:
- Consent: the alleged victim consented to the sexual intercourse. There are however some situations where this cannot be used as a defence (for example if the alleged victim was too intoxicated to consent).
- Honest and reasonable mistake: You held an honest and reasonable belief that the alleged victim was consenting.
- Identification: The Crown cannot establish that you were responsible. There are often experts (such as DNA, fingerprint, CCTV and intoxication experts) who are able to cast doubt on identification in certain situations;
- Automatism:This is where the offending was involuntary. This can sometimes involve sleep disorders.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.