The complainant had also messaged a woman that day before and after meeting Hayne, in which she spoke of an encounter and said he “went down on her” but did not say it was non-consensual.
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In 2021, she messaged that same woman on Facebook saying, “I have never done anything to you and for you to write something to JH about me having him over does not excuse what happened,” adding, “I did not tell you because it was disgusting and confusing for me”.
Game on Wednesday argued the situation amounted to “concealment of evidence on a large scale”.
“It’s not just, ‘I want to get rid of stuff that’s hurtful’. It’s ‘I want to get rid of stuff that’s hurtful because it shows that I actually was consenting’,” the barrister said.
“It’s evidence of dishonesty. It also goes to her credibility in a general sense.”
The defence also raised the 27-minute period between the end of the grand final match at 9.26pm and Hayne leaving the Newcastle home in his taxi at 9.53pm.
The woman alleged Hayne had pulled off her pants, performed the sexual acts over about 30 seconds and left her bleeding.
Game said what was alleged was a “very rapid sequence of events”.
“We say that could account for several minutes, it couldn’t account for 27 minutes,” he said.
Hayne, sporting a fresh haircut, appeared at Wednesday’s hearing via video link from Mary Wade Correctional Centre in Lidcombe, in Sydney’s west, while his wife Amellia Bonnici also tuned in.
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Crown prosecutor Georgina Wright, SC, said the complainant had not told the other woman about the sexual assault because the pair had never met in person, and knew each other from social media.
She said the victim’s complaints to five other people about the night were “remarkably similar” including alleging Hayne was rough and pushy, that she kept saying “no” and had asked him to stop.
“They spoke to the non-consensual nature of their interaction,” Wright said. “The fact she didn’t tell [the other woman] paled into insignificance.”
The prosecutor said the complainant’s Facebook message to the other woman in 2021 was “consistent with an expression of frustration with the legal process” and did not support the thesis that she was “deliberately trying to conceal” her messages.
Hayne’s appeal relies on three grounds: that the verdicts are unreasonable or cannot be supported by the evidence; that the trial judge erred in ruling the woman did not have to give evidence on certain interactions she had with the other man and woman; and that this resulted in a miscarriage of justice.
Game argued Hayne’s convictions should be quashed, and he should be acquitted if any of the grounds succeed.
“We say this is a case where you wouldn’t order a retrial,” he told Justices Anthony Meagher, Stephen Rothman and Deborah Sweeney.
The hearing continues.
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