Paul Crowhurst v The King; Narelle Crowhurst v The King (No 2) - [2025] NSWCCA 146

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Paul Crowhurst v R; Narelle Crowhurst v R (No 2) [2025] NSWCCA 146
Hearing dates: 4 April 2025
Date of orders: 17 September 2025
Decision date: 17 September 2025
Before: McHugh JA at [1];
McNaughton J at [189];
Coleman J at [193]
Decision:
In relation to the conviction appeals:
(1) In respect of Mr Crowhurst’s appeal against conviction:
(a) Grant leave pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
(b) Grant leave to the extent necessary pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) and pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) with respect to grounds 2, 6, 9, 10 and 11.
(c) Otherwise refuse leave.
(d) Dismiss the appeal.
(2) In respect to Ms Crowhurst’s appeal against conviction:
(a) Grant leave pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
(b) Grant leave to the extent necessary pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) and pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) with respect to grounds 2, 6, 8, 9, 10 and 11.
(c) Otherwise refuse leave.
(d) Dismiss the appeal.
In relation to the sentence appeals:
(1) In respect to each appeal:
(a) Grant leave pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW);
(b) Refuse leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) with respect to grounds 12,13,14 and 16 and dismiss those grounds;
(c) Grant leave pursuant to s 5(1)(c) with respect to ground 15 but dismiss the appeal.
(2) In respect to Ms Crowhurst’s appeal refuse leave pursuant to s 5(1)(c) with respect to ground 17 and dismiss that ground.

Catchwords:
CRIME — Appeals — Appeal against conviction — Crimes Act 1900 (NSW), s 66EA —International Covenant on Civil and Political Rights not enacted in domestic law
CRIME — Appeals — Appeal against conviction — Standard of proof under s 66EA
CRIME — Appeals — Appeal against conviction — Whether applicants suffered forensic disadvantage — Whether police officer failed to properly investigate case — Whether Office of the Director of Public Prosecutions improperly delayed charging applicants — Whether sentencing judge’s findings inconsistent with verdicts of guilty
CRIME — Appeals — Appeal against conviction — Irregularity at trial — Where Crown Prosecutor’s disclosure incomplete — Whether irregularity material
CRIME — Appeals — Appeal against conviction — Where inappropriate remarks in Crown Prosecutor’s address — Where trial judge refused application to discharge jury — Whether prejudice occasioned by remarks material
CRIME — Appeals — Appeals against sentence — Unlawful sexual relationship with child — Six grounds of appeal — Whether the trial judge was required to ask the jury which acts they found proved — Whether trial judge was obligated to sentence the applicants on a basis most favourable to them — Whether trial judge added extra charges — Manifest excess — Applicability of the ICCPR under Australian law — Reliance on events which post-date sentence — Appeal brought out of time — Extension granted — Leave granted on one ground — Appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW) (as at 1 January 1989), ss 61A, 61E, 66C
Crimes Act 1900 (NSW) (as at 17 March 1991), ss 61H, 61M, 66C
Crimes Act 1900 (NSW), s 66EA
Criminal Appeal Act 1912 (NSW), ss 5, 6, 10(1)(b)
Criminal Law Consolidation Act 1935 (SA), s 50
Evidence Act 1995 (NSW), ss 38, 165B
Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.5(5), 4.15

Cases Cited:
Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162
Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
Conway v R [2023] NSWCCA 265
Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13
Crockford v R [2022] NSWCCA 115; (2022) 100 MVR 206
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Dawiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62; (2011) 209 A Crim R 424
Dimitriou v R [2025] NSWCCA 18
Fuller v R [2022] NSWCCA 203
Futcher v R [2025] NSWCCA 102
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
Hijazi v R [2020] NSWCCA 97
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ibrahim v R [2014] NSWCCA 160
Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248
JC v R [2021] NSWCCA 254
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
Kibby v R [2024] NSWCCA 207
KNP v R [2006] NSWCCA 213
Massaquoi v R [2024] NSWCCA 125
MDP v The King [2025] HCA 24; (2025) 99 ALJR 969
Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20
MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCA 180
Moore (a pseudonym) v R [2024] HCA 30; (2024) 98 ALJR 1119
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44
Owen v R [2022] NSWCCA 214
Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29
Paul Crowhurst v R; Narelle Crowhurst v R [2025] NSWCCA 57
Polyukhovich v The Commonwealth (1991) 172 CLR 501; [1991] HCA 32
R v Basha (1989) 39 A Crim R 337
R v Edwards [2009] HCA 20; (2009) 83 ALJR 717
R v Isaacs (1997) 41 NSWLR 374
R v Livermore (2006) 67 NSWLR 659; [2006] NSWCCA 334
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290:
R v RB [2022] NSWCCA 142
Rassi v R [2023] NSWCCA 119
Richardson v R [2021] NSWCCA 304
Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44
SA v R [2024] NSWCCA 50
SB v R [2020] NSWCCA 207
Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35
The King v Kidman (1915) 20 CLR 425; [1915] HCA 58
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Toller v R [2021] NSWCCA 204
Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Woods v Industrial Relations Secretary on behalf of the Office of the Director of Public Prosecutions [2021] NSWIRComm 1054
Xerri v The King (2024) 278 CLR 276; [2024] HCA 5
Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371
Zreika v R [ 2012] NSWCCA 44

Texts Cited:
International Covenant on Civil and Political Rights, Arts 7, 15

Category: Principal judgment
Parties:
Proceedings 2018/180076
Paul Crowhurst (Applicant)
Rex (Respondent)
Proceedings 2018/180071
Narelle Crowhurst (Applicant)
Rex (Respondent)
Representation:
Counsel:
In person (Applicants)
T Abdulhak (Respondent)
Solicitors:
In person (Applicants)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/180071 (NC)
2018/180076 (PC)
Publication restriction: Statutory non-publication order pursuant to s 578A of the Crimes Act 1900 (NSW) in relation to the identity of the complainant.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

17 July 2020
21 February 2020

Before:

McLennan SC DCJ

File Number(s):

2018/180071 (NC)
2018/180076 (PC)

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Paul Crowhurst and Ms Narelle Crowhurst (the Applicants) are a married couple. On 21 February 2020, following a trial in the District Court at Lismore, a jury found each of them guilty of an offence of maintaining an unlawful sexual relationship with a child contrary to s 66EA(1) of the Crimes Act 1900 (NSW). The complainant had been the Applicants’ neighbour and babysitter. On the Crown case, the Applicants had each commenced an unlawful sexual relationship with the complainant in 1989 when the complainant was 13 years of age. On 17 July 2020, the Applicants were each sentenced by McLellan SC DCJ to 13 years imprisonment, with a non-parole period of 8 years.

The Applicants sought leave to appeal against their convictions and sentence pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW). The grounds of appeal were summarised and numbered by the Crown. At the hearing the Applicants agreed that that summary covered the grounds they wished to raise.

Those grounds were in summary as follows.

Section 66EA violates Art 15 of the International Covenant on Civil and Political Rights (ICCPR) and offends the principle of procedural fairness because it operates retrospectively.
The level of proof required under s 66EA falls considerably short of the requirements of a jury trial.
The Applicants did not receive a fair trial. They suffered a complete forensic disadvantage due to the passage of time.
The police officer in charge of the investigation failed to properly investigate the case and coached a witness.
The Office of the Director of Public Prosecutions (ODPP) kept extending the time until 1 December 2018 to charge the Applicants, knowing that the new version of s 66EA did not require it to provide any evidence.
The Crown Prosecutor failed to fully disclose the reason an ODPP solicitor was dismissed from the trial, and the applicants later learnt that the solicitor had coached the complainant.
The trial judge’s findings on sentence indicate that his Honour was not satisfied beyond reasonable doubt of the complainant’s evidence given after the dismissal of the ODPP solicitor. Consideration should be given to whether that factual determination is inconsistent with the finding of guilt.
(In relation to Ms Crowhurst only) The trial judge erred in failing to discharge the jury after the Crown Prosecutor caused prejudice against Ms Crowhurst by attacking her good character in his address to the jury.
The trial judge made it clear that, to convict someone of s 66EA, the jury did not have to be satisfied beyond reasonable doubt about anything, and did not have to reach unanimity as to the acts they found proved.
The trial judge conceded that, since there were five acts alleged to have occurred on a single occasion and s66EA left it open for the jury to return a split verdict, this would result in a “trip to the Court of Criminal Appeal.”
The jury were only required to find a minimum of two acts proven and did not have to agree on which acts.
The trial judge failed to ask the jury which of the acts that made up s 66EA they found proved.
The trial judge did not follow the Bench Book when sentencing the applicants. The Bench Book states that when a judge does not require the jury to identify the acts which they found proved, the judge must sentence an accused in “the way most favourable to them”.
The trial judge “went behind the jury's verdict” to bring additional charges against the applicants, which charges had not been certified by the Office of The Director of Public Prosecutions (“ODPP”).
The sentences are manifestly excessive.
The applicants have been locked in their cells for in excess of 200 days in total.
(In relation to Ms Crowhurst only): Narelle Crowhurst has suffered “extreme ongoing neglect, abuse and maltreatment” within the medical system while in custody (AB 6). This is tantamount to torture and violates article 7 of the International Covenant on Civil and Political Rights (“ICCPR”). Narrelle Crowhurst was also held in isolation in the segregation area for the first two months of her sentence.

In relation to the conviction appeal, the Court held (McHugh JA, McNaughton and Coleman JJ agreeing) granting leave in part and dismissing the appeal.

As to Ground 1

The provisions of the ICCPR have not been enacted in domestic law and so the Convention does not give individuals rights inconsistent with domestic law. The Parliament has power to enact legislation, including criminal legislation, which has retrospective effect: at [45]-[46].
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20; The King v Kidman (1915) 20 CLR 425; [1915] HCA 58; Polyukhovich v The Commonwealth (1991) 172 CLR 501, cited.

As to Grounds 2, 9, and 11

Section 66EA(5)(a) provides that the jury must be satisfied beyond a reasonable doubt that an unlawful sexual relationship existed. The jury must be unanimous with respect to that element. The trial judge appropriately directed the jury that it must be satisfied beyond a reasonable doubt that the evidence established the elements of the offence: at [52]-[55], [58]-[60], [70].

As to Ground 10

The trial judge’s reference to a split verdict occurred in the absence of the jury. His Honour was referring to a hypothetical scenario in which the jury came to consider the alternative counts and returned arguably inconsistent verdicts on those counts. This was not relevant to the s 66EA offences of which the Applicants were convicted: at [66]-[68].

As to Ground 3

The trial judge directed the jury appropriately in relation to forensic disadvantage. In the circumstances, the absence of witnesses or records did not make the trial unfair. The Applicants did not otherwise demonstrate any unfairness, wrong decision or other miscarriage of justice: at [82], [88].
R v Edwards [2009] HCA 20; (2009) 83 ALJR 717, cited.

As to Ground 4

There is no proper basis for the allegations that the officer in charge of the investigation failed to investigate the case properly or coached any witness: at [98].

As to Ground 5

The timing of the laying and certification of the s 66EA charges was unremarkable. The Applicants did not show any irregularity or unfairness: at [102].

As to Ground 6

The difference between what was disclosed by the Crown Prosecutor and what in fact occurred was an irregularity. In the circumstances, it cannot be said that that irregularity was material in the sense that it could realistically have affected the reasoning of the jury to its verdicts as to counts 1 and 9: [114]-[126].
Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872, applied.

As to Ground 7

The sentencing judge’s lack of satisfaction beyond reasonable doubt only concerned the “maintaining” aspect of the s 66EA offences during the time the Appellants lived in Murwillumbah. Those findings were not inconsistent with the guilty verdicts on counts 1 and 9: at [141]-[144].

As to Ground 8

In considering whether there has been a miscarriage of justice, the views of the trial judge will be entitled to significant weight. It is necessary to consider carefully the directions given by the trial judge on the well-established assumption that a jury is capable of understanding and obeying judicial directions: at [170]-[172].
Kibby v R [2024] NSWCCA 207; Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248; Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22; Ibrahim v R [2014] NSWCCA 160; Crockford v R [2022] NSWCCA 115; (2022) 100 MVR 206; KNP v R [2006] NSWCCA 213, cited.
In light of the directions the trial judge gave in the circumstances of the trial that occurred, the prejudice occasioned by the Crown Prosecutor’s statement about other high profile cases could not realistically have affected the reasoning of the jury to the verdict of guilty: [181].
Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872, applied.

In relation to the sentence appeal, the Court held (Coleman J, McHugh JA, McNaughton and J agreeing) granting leave in part and dismissing the appeal.

As to Ground 12

It is well established that there is no obligation on a judge to make enquiries of a jury as to the basis of its verdict: at [228].
R v Isaacs (1997) 41 NSWLR 374; Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67; Fuller v R [2022] NSWCCA 203, cited.
When an offender is convicted for an offence under s 66EA, there is no obligation on a trial judge to enquire of the jury, nor for the jury to specify, which of the particularised unlawful sexual acts it found proved. That provision specifies that the jury need not be satisfied of the particulars as if they were stand-alone offences nor did it have to agree on which acts were the basis of its conclusion: at [225]-[231].
R v RB [2022] NSWCCA 142; Massaquoi v R [2024] NSWCCA 125, applied.
Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37, considered.

As to Ground 13

The sentencing judge did not err in not sentencing the applicants on a basis most favourable to them. Contrary to the applicants’ submissions the Bench Book at the time did not say otherwise. In any event, the Bench Book does not represent any kind of binding authority with respect to procedures during a criminal trial: at [232].
SB v R [2020] NSWCCA 207; Rassi v R [2023] NSWCCA 119; Dimitriou v R [2025] NSWCCA 18, cited.

As to Ground 14

The sentencing judge did not add any extra charges. Acts of indecent assault had been particularised as some of the unlawful sexual acts in the s 66EA charges. Once the jury found the s 66EA counts to be proved, it did not have to render verdicts on any of the particulars said to constitute the unlawful acts nor on any of the alternative charges: at [233]-[235].

As to Ground 15

Manifest excess was said to have arisen as a result of the sentencing judge not making the necessary inquiries of the jury (ground 12) and adding extra charges (ground 14). As noted, the Court dismissed both those grounds of appeal: at [225]-[231] and [233]-[235].
Additionally, the Applicants submitted that manifest excess is evinced by the fact that the maximum penalty for a s 66C offence is 8 years. As they were not convicted of any offences under s 66C, this submission was baseless. There was no demonstrated error in the approach of the sentencing judge and his Honour’s sentence was within the sentencing discretion: at [243]-[249].
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95, applied.

As to Ground 16

The sentencing judge heard submissions about the possible impact of the COVID-19 pandemic and took these matters into account on sentence: at [251].
Evidence concerning society-wide impacts which render conditions in custody more onerous after a prisoner was sentenced is generally not a basis for interfering with the sentence where no error has been demonstrated: at [252]-[254].
Toller v R [2021] NSWCCA 204, applied.
Futcher v R [2025] NSWCCA 102, cited.

As to Ground 17

The sentencing judge had before him medical evidence going to Ms Crowhurst’s conditions, and took those matters known to him into account on sentence: at [259].
Events postdating the imposition of a sentence cannot be taken into account to demonstrate a sentencing error: at [255]-[258].
Richardson v R [2021] NSWCCA 304; Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509, applied.
The ICCPR has not been incorporated by statute into domestic law and therefore does not vest the Applicants with any additional rights under Australian law: at [46] and [260]-[261].
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20, applied.

JUDGMENT

McHUGH JA: The applicants, Mr Paul Crowhurst and Ms Narelle Crowhurst, are a married couple. On 21 February 2020, following a trial in the District Court at Lismore at which each of the applicants had been separately represented by a barrister, a jury found each applicant guilty of an offence of maintaining an unlawful sexual relationship with a child contrary to s 66EA(1) of the Crimes Act 1900 (NSW). The complainant had been the applicants’ neighbour and babysitter. The relevant period during which the offences were alleged to have occurred was 1 January 1989 to 4 December 1991, being the day before the complainant turned 16 (Relevant Period).
In the alternative to the s 66EA counts, each applicant had been charged with seven counts involving offences contrary to what was s 66C(1) of the Crimes Act during the Relevant Period, namely, sexual intercourse with a child above the age of 10 and under the age of 16.
On 17 July 2020, the trial judge, McLennan SC DCJ, sentenced each of Mr Crowhurst and Ms Crowhurst to a non-parole period of 8 years imprisonment and an additional term of 5 years imprisonment.

This judgment addresses the applicants’ appeals, and applications for leave to appeal, against their convictions. Coleman J, with whose reasons and proposed orders I agree, addresses the applicants’ applications for leave to appeal against their sentences.

Legislative provisions

Section 66EA of the Crimes Act relevantly provides:

66EA Persistent sexual abuse of a child
(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
Maximum penalty—Imprisonment for life.
(2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.
(3) It is immaterial that any of those unlawful sexual acts occurred outside New South Wales, so long as at least one of the unlawful sexual acts occurred in New South Wales.
(4) In proceedings for an offence under this section, the prosecution—
(a) is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, and
(b) is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.

(5) In order for the accused to be convicted of an offence under this section—
(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, and
(b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, and
(c) the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.

(6) In proceedings for an offence under this section, the judge must inform the jury of the requirements of subsection (5).
(7) This section extends to a relationship that existed wholly or partly before the commencement of the relevant amendments, or the predecessor offence, if the acts engaged in by the accused were unlawful sexual acts during the period in which the relationship existed. …

In that section, “unlawful sexual act” is defined as follows.

(15)…
unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), any of the following offences—
(a)  an offence under section 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66F or 80A,
(b)  an offence under a provision of this Act set out in Column 1 of Schedule 1A,
(c)  an offence of attempting to commit an offence referred to in paragraph (a) or (b),
(d)  an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(c),
(e)  an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraphs (a)–(d).

At trial, for the purposes of the s 66EA charges, the Crown relied on the alleged s 66C(1) offences (which were the subject of the alternative counts) as “unlawful sexual acts” within the meaning of the definition of “unlawful sexual relationship”. During the Relevant Period, s 66C(1) provided:

66C Sexual intercourse—child between 10 and 16
(1) Any person who has sexual intercourse with another person who is of or above the age of 10 years, and under the age of 16 years, shall be liable to penal servitude for 8 years.

From the commencement of the Relevant Period until 16 March 1991, “Sexual intercourse” was defined in s 61A, which relevantly provided:

61A   Definition of sexual intercourse etc
(1) For the purposes of sections 61A–66F, sexual intercourse means:
(a)  sexual connection occasioned by the penetration of the vagina of any person or anus of any person by:
(i)  any part of the body of another person, or
(ii)  an object manipulated by another person,
except where the penetration is carried out for proper medical purposes,

(b)  sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person,
(c)  cunnilingus, or
(d)  the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

…

From 17 March 1991 until the end of the Relevant Period on 4 December 1991, “Sexual Intercourse” was defined in s 61H, which was relevantly the same.
The Crown also relied on alleged offences contrary to what were, during the period from the commencement of the Relevant Period until 16 March 1991, ss 61E(1) and (1B), as further “unlawful sexual acts” within the definition of “unlawful sexual relationship” in s 66EA(2). Section 61E relevantly provided:

61E Sexual assault category 4—indecent assault and act of indecency
(1) Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency upon or in the presence of the other person, shall be liable to imprisonment for 4 years.
…
(1B) Any person who, in the company of others, assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency upon or in the presence of the other person, shall be liable to penal servitude for 6 years.

From 17 March 1991 until the end of the Relevant Period, the relevant provision for the indecent assaults was s 61M, which provided:

61M Aggravated indecent assault
(1) Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years.
(2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 10 years.
(3) In this section, circumstances of aggravation means circumstances in which:
(a) the alleged offender is in the company of another person or persons, or
(b) the alleged victim is under the age of 16 years, or
(c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(d) the alleged victim has a serious physical disability, or
(e) the alleged victim has a serious intellectual disability.

The Crown case at trial

Although it is not necessary for present purposes to give an account of all the evidence upon which the Crown relied at trial, it is convenient to begin by saying something about the Crown case, including the way in which particular incidents were relied upon in support of both the primary s 66EA counts against each applicant and also the alternative counts. It should also be noted at the outset that the case for each applicant was that there were never any sexual acts between either of them and the complainant.
On the Crown case, each applicant commenced an unlawful sexual relationship with the complainant in November 1989, when the complainant was 13 years of age (and living across the road from the applicants in East Lismore). Mr Crowhurst was 31 and Ms Crowhurst was 24. Both unlawful sexual relationships continued after the applicants moved to Murwillumbah in 1990. Ms Crowhurst’s unlawful sexual relationship with the complainant was alleged to have ended in 1991. Mr Crowhurst’s unlawful sexual relationship with the complainant was alleged to have ended later in 1991 (while the complainant was still 15 years of age). However, by way of context, on the Crown case Mr Crowhurst also had further acts of sexual intercourse with the complainant in 1992 when she was 16 years old.
The Crown relied on evidence of the following matters.
The complainant was born on 5 December 1975. In about December 1988, the applicants and their two sons moved into a house across the road from the complainant’s. For at least parts of the period while the applicants lived at that house (i.e. until about August or September 1990), the applicants’ friend Vicki Brown and a student named Virginia Crawford lived with them.
The complainant and her family began to socialise with the applicants. In 1989, when the complainant was 13 years of age, she started to babysit the applicants’ two sons. On a number of occasions, the complainant slept over at the applicants’ house. There was domestic violence in the complainant’s home. She found the applicants supportive and sympathetic, and began to babysit and stay over more often. She slept in a “sleep out” room which was accessible directly from the applicants’ bedroom.
On the night of 4 November 1989, Mr Crowhurst knelt beside the complainant’s bed in the sleep out room, putting his hand inside her underpants and inserting his finger into her vagina. That act was relied on against Mr Crowhurst as an unlawful sexual act for purposes of the s 66EA charge, and in the alternative as count 2. Mr Crowhurst asked the complainant to go to bed with him and Ms Crowhurst. She said no.
The following day, 5 November 1989, the complainant accompanied the applicants, their children and Ms Brown to an outdoor event known as the “Scrub to Pub” raft race on the river. Ms Crowhurst told the complainant that she knew what had happened the previous night and asked the complainant if she was interested in going to bed with the applicants. Later that night, the complainant returned with the applicants to their home. The applicants put on a pornographic movie for the complainant to watch. Ms Brown was present at the house and walked into and out of the lounge room while the movie was on the screen. The applicants and the complainant had a bath together, and then the complainant lay on the applicants’ bed. The applicants kissed the complainant, touched and sucked her breasts, inserted their fingers in her vagina and performed oral sex on her. Mr Crowhurst put his penis in the complainant’s mouth. The complainant performed oral sex on Ms Crowhurst and touched and sucked her breasts. Mr Crowhurst inserted his penis inside the complainant’s vagina.
The acts of sexual intercourse and indecent assault on the night of the Scrub to Pub race were relied on as unlawful sexual acts for the purposes of the s 66EA counts (1 and 9), and in the alternative as constituting counts 3, 4 and 5 against Mr Crowhurst and counts 10 and 11 against Ms Crowhurst. Count 11 was aiding Mr Crowhurst’s offence of penile/vaginal intercourse.
On a separate occasion, both applicants asked the complainant if Mr Crowhurst could put his penis in her anus. The complainant agreed, and Mr Crowhurst had penile/anal intercourse with the complainant. That act was relied on as an unlawful sexual act for the purposes of the s 66EA counts (1 and 9), and in relation to the alternative counts 8 and 14.
The complainant slept at the applicants’ house at East Lismore, in their bed, on the Friday and Saturday night of as many weekends as she could. On those occasions, unlawful sexual acts would occur, including digital penetration, the applicants performing oral sex upon the complainant, and she upon them, and penile/vaginal intercourse with Mr Crowhurst.
The then girlfriend of the complainant’s brother saw the complainant and Mr Crowhurst “having a passionate kiss” at the applicants’ house in 1990. That night, the complainant told her brother and his girlfriend that she was in a relationship with the applicants and not to tell her parents.
The complainant gave evidence that the applicants’ friend Vicki Brown was aware of and joked with Ms Crowhurst about the applicants’ sexual relationship with the complainant. Ms Brown denied that. Ms Brown also gave evidence that the complainant did not visit the applicants’ East Lismore house very often, and that she only saw the complainant come over to the applicants’ house once or twice in the whole period of 18 months to 2 years that she lived with the applicants. That evidence was inconsistent with that of Ms Crowhurst, who said in the period 1989-1990 the complainant visited two to three times a week. Ms Brown also denied (inconsistently with the evidence of Mr Crowhurst) that the complainant had accompanied the applicants to the Scrub to Pub event.
In August or September 1990, the applicants moved from East Lismore to a house in Murwillumbah (called the “small house” at trial), where the applicants lived for about six months. The complainant said that she visited the small house at least once. The applicants then moved to another house at Murwillumbah (called the “big house” at trial). The complainant said that she visited the big house twice. The complainant said that during one of these visits she stayed with the applicants for up to a week in April 1991 and that Ms Crowhurst drove the complainant to attend a school friend’s funeral. At both the small house and the big house the complainant slept in the applicants’ bed with them.
On one occasion the complainant was alone with Ms Crowhurst at the small house. She and Ms Crowhurst kissed, and the complainant had digital vaginal intercourse with Ms Crowhurst, who performed oral sex on the complainant. The complainant recalled that Ms Crowhurst had a cold sore on her mouth. The Crown relied on these as unlawful sexual acts in support of the s 66EA charge against Ms Crowhurst (count 9) and in relation to the alternative count 16.
On one occasion at the big house, Mr Crowhurst suggested that the complainant wear Ms Crowhurst’s suspenders, which Ms Crowhurst helped the complainant to put on. The complainant rubbed her pubic bone on Ms Crowhurst’s clitoris; Mr Crowhurst performed oral sex on the complainant; and Mr Crowhurst had penile/vaginal sex with the complainant. The Crown relied on these as unlawful sexual acts in support of the s 66EA charges (counts 1 and 9), and also in relation to the alternative counts 7 and 12. It should be noted that (in circumstances discussed below in relation to Ground 6), contrary to the Crown’s opening, the Crown did not lead evidence that Mr Crowhurst penetrated the complainant’s mouth with his penis or that Ms Crowhurst penetrated the complainant’s vagina with her fingers in relation to the “suspenders” incident, and no further proceedings were taken with respect to the alternative counts 6 and 13, which related to those allegations.
When the complainant was in Year 10 (i.e., in 1991, when the complainant was 15 years old), Mr Crowhurst and the complainant arranged to meet in Brisbane where they spent a night in a motel. They performed oral sex on each other, and the complainant recalled them “having sex” (which was not further specified). The Crown relied on this incident as involving an unlawful sexual act (fellatio) for the purposes of the s 66EA charge against Mr Crowhurst: Summing up at 54.
The complainant also gave evidence of two separate incidents involving Mr Crowhurst at the Illawong Pub, a hotel at Evans Head in 1991 and 1992. At the time of the first incident, the complainant was aged 15. At the time of the second incident, the complainant was aged 16. In both incidents, the complainant and Mr Crowhurst performed oral sex on each other and Mr Crowhurst had penile/vaginal sex with the complainant. The Crown did not rely on either of the Evans Head incidents to prove any of the charges on the indictment, including the s 66EA counts. Instead, the Evans Head incidents were relied on as evidence of a broader context and an anti-tendency direction was given: Summing up at 59-60.

The defence case at trial

Both applicants gave evidence at the trial. They denied ever engaging in any sexual acts with the complainant.
As to the house at East Lismore, Ms Crowhurst denied that the complainant ever slept over. Mr Crowhurst said that the complainant only slept over twice, and never in the applicants’ bedroom.
As to the small house at Murwillumbah, both applicants denied that the complainant ever visited it. As to the big house, Mr Crowhurst denied that the complainant ever visited it when he was there. Mr Crowhurst gave evidence that after he and Ms Crowhurst moved to Murwillumbah, the complainant would turn up at locations where he was making deliveries as part of his work. He told Ms Crowhurst, whom he described as “a somewhat jealous person”. He understood that he was to go to the complainant’s house and tell her to leave him alone, which he did. Ms Crowhurst described an occasion when the complainant visited her unannounced at the big house, and was asked to leave. She said that she became upset when she found out that the complainant was following her husband.
Ms Crowhurst also led evidence from several witnesses of her good character.

The appeal

On 29 October 2024, each of the applicants, who are self-represented on appeal, filed a notice of appeal seeking leave to appeal their convictions and sentences pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) (CriminalAppeal Act).
Together with their notices of appeal, each applicant also filed a series of submissions and related documents headed “Submissions against conviction”, “Submissions that we did not receive a fair trial resulting in a wrongful conviction” (Fair Trial submissions), “Summary of the case brought against us”, “Excerpts from reference documents” and “Submissions in relation to the manifestly excessive sentence”. They also filed documents in connection with their applications for bail, which were refused at the conclusion of the hearing: Paul Crowhurst v R; Narelle Crowhurst v R [2025] NSWCCA 57.
On 15 November 2024, both applicants filed a handwritten, non-numbered, document entitled “Summary of Grounds of Appeal in no particular order”.
On 2 December 2024, Mr Crowhurst filed an affidavit dated 27 November 2024, to which were annexed various “reference documents”. On 23 January 2025, Ms Crowhurst filed an undated affidavit (apparently signed on 16 January 2025).
In its written submissions, the Crown summarised and numbered the grounds of appeal. The applicants agreed at the hearing of the appeal that this summary covered the grounds that they wished to raise, and the appeal was conducted on that basis. It should, however, be noted that the applicants’ various submissions were not related to their “Summary of Grounds of Appeal in no particular order” or to the Crown’s numbered summary. These reasons accordingly take a somewhat flexible approach to the sequence in which, and the headings under which, the applicants’ submissions are addressed.
The summarised grounds in relation to the applicants’ convictions are as follows.

Ground 1: “Section 66EA violates Article 15 of the International Covenant on Civil and Political Rights (ICCPR) and offends the principle of ‘procedural fairness’ because it operates retrospectively. The criminal offence did not exist at the time of the alleged offending. Section 66EA also contravenes Article 15 of the ICCPR and principles of criminal law because it imposes a sentence which was higher than that applicable at the time of the alleged acts.”

Ground 2: “The level of proof required under s.66EA ‘falls considerably short’ of the requirements of a jury trial.”

Ground 3: “The applicants did not receive a fair trial. They suffered a ‘complete forensic disadvantage’ due to the passage of time.”

Ground 4: “Detective Ewing (police officer in charge of the investigation) failed to properly investigate the case and coached a witness.”

Ground 5: “The Office of the Director of Public Prosecutions (ODPP) kept extending the time until 1 December 2018 to charge the applicants knowing that the new version of s66EA did not require it to provide ‘any evidence.’”

Ground 6: “The Crown Prosecutor failed to fully disclose the reason an ODPP solicitor was dismissed from the trial, and the applicants later learnt that the solicitor had coached the complainant.”

Ground 7: “The trial judge’s findings on sentence indicate that his Honour was not satisfied beyond reasonable doubt of the complainant’s evidence after the dismissal of the ODPP solicitor. Consideration should be given to whether that factual determination is inconsistent with the finding of guilt.”

Ground 8 (in relation to Ms Crowhurst only): “The trial judge erred in failing to discharge the jury after the Crown Prosecutor caused prejudice against [Ms Crowhurst] by attacking her good character in his address to the jury.”

Ground 9: “The trial judge ‘made it clear’ that, to convict someone of s66EA, the jury did not have to be satisfied beyond reasonable doubt about anything, and did not have to reach unanimity as to the acts they found proved.”

Ground 10: “The trial judge conceded that, since there were five acts alleged to have occurred on a single occasion and s66EA left it open for the jury to return a ‘split’ verdict, this would result in a ‘trip to the Court of Criminal Appeal.’”

Ground 11: “The jury were only required to find a minimum of two acts proven and did not have to agree on which acts.”

The appeals were filed out of time and the applicants require leave. To the extent that grounds 2-10 do not involve a question of law alone, leave is required pursuant to s 5(1)(b) of the Criminal Appeal Act. The Crown submits that leave is also required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) with respect to (at least) grounds 3 and 8, since no further directions were sought at trial. It is convenient to deal with the question of time first, before addressing the other questions of leave ground by ground.

Filing out of time

The applicants provided the following identical reasons for filing their notices of appeal out of time.

In October 2021 they say they received merit advices funded by Legal Aid with which they disagreed.

They say that further delay was caused by the fact that Ms Crowhurst’s solicitor, was “working in her spare time”.

In 2022 they submitted complaints to the Office of the Legal Services Commissioner regarding the conduct of Mr Woods (a solicitor from the ODPP) and the Crown Prosecutor, which were forwarded to the Bar Council and the Law Society. They did not wish to pursue an appeal while these complaints were being dealt with, which did not occur until December 2023.

They are self-represented litigants in gaol and have had to rely on their son to complete legal research for them.

They say that delay has been occasioned due to the time taken to obtain the correct forms and file their appeal.

The Crown notes that no evidence has been filed in support of these submissions. It submits that there are several factors that militate against the applicants’ being permitted to proceed out of time. These include the lack of prospects of success of the appeal, the interests of the Crown, the community, the complainant and witnesses, as well as the importance of finality of the proceedings. See Dawiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62; (2011) 209 A Crim R 424 at [38]-[39] per Johnson J (McLellan CJ at CL and James J agreeing).
Those are powerful considerations, especially given the passage of time in this case. However, the overriding consideration is whether it is in the interests of justice to determine the applicants’ notices of appeal notwithstanding that they are out of time. It is on balance appropriate in this case to do so. The applicants are self-represented. Although many of their arguments are legally misconceived, some of the grounds, in particular 6 and 8, raise arguments that have necessitated close examination. It is preferable to address the applications on their merits rather than disposing of them on the basis that they are out of time.

Ground 1

It was not disputed that s 66EA was enacted with the legislative intention that it have retrospective effect (see s 66EA(7) and Xerri v The King (2024) 278 CLR 276; [2024] HCA 5 at [11] per Gageler CJ and Jagot J; at [40] per Gordon, Steward and Gleeson JJ). To the contrary, the fact that the offence in s 66EA is retrospective is the premise of the applicants’ complaint that the offence did not exist in the period 1989 to 1990, and that the provision and their prosecution under it violate civil and political human rights under Article 15 of the International Covenant on Civil and Political Rights (ICCPR): see Submissions against conviction at [24]-[25]. They say that the retrospective application of s 66EA exposes an offender to a higher maximum penalty than would otherwise have been imposed: Submissions against conviction at [4]. They also submit that s 66EA offends the principles of procedural fairness against accused persons.
Ground 1 has several elements, none of which identifies a valid basis to challenge the convictions. Although none of these complaints was raised at the trial (despite lengthy submissions as to the content of s 66EA and how it was to be applied), it is nevertheless appropriate to deal with Ground 1 on its merits.
To the extent that Ground 1 relies on contravention of the ICCPR, it cannot succeed. The provisions of the ICCPR have not been enacted in domestic law, and so the Convention does not give individuals rights inconsistent with domestic law: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20 per Mason CJ and Deane J at 286-287, Toohey J at 298, Gaudron J at 304, McHugh J at 315. The Commonwealth’s ratification of the ICCPR did not limit the States’ legislative power to enact laws contrary to the Convention: Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35, per French CJ at [48], Hayne J at [97]-[98], Gageler J at [136] and Keane J at [249]; see also per Crennan, Kiefel and Bell at [134].
To the extent that s 66EA(1) is otherwise said to “offend[] the principle of ‘procedural fairness’ because it operates retrospectively”, it has long been held that the Parliament has power to enact legislation, including criminal legislation, which has retrospective effect: The King v Kidman (1915) 20 CLR 425; [1915] HCA 58 per Isaacs J at 442, Higgins J at 453, Gavin Duffy and Rich JJ at 455-456, Powers J at 458-461, 462 and 463; Polyukhovich v The Commonwealth (1991) 172 CLR 501; [1991] HCA 32 per Mason CJ at 534-536, Dawson J at 642-644, McHugh J at 717-721. Whether particular legislation is to be interpreted as having that effect is a different question. But as noted above, there is no doubt, and it was not disputed in this case, that s 66EA(1) is intended to operate retrospectively. Once it is accepted that the Parliament had power to enact such a law, and that it intended to do so, the fact that the law operates retrospectively does not, without more, contravene any principle of procedural fairness founding a ground of appeal. (Cf Ground 3, addressed below.)
Ground 1, which purports to raise a question of law, should be dismissed.

Grounds 2, 9, 10 and 11

It is convenient to deal with these grounds together as they overlap.
Ground 2 is: “The level of proof required under s 66EA ‘falls considerably short’ of the requirements of a jury trial.”
The applicants’ basic complaint is about the law itself, rather than that s 66EA was in some way misapplied at their trial. A complaint of that kind does not give rise to any valid ground of appeal.
To the extent that the words “level of proof” mean that the standard of proof required by s 66EA is not the criminal standard, the ground mis-states the operation of the section. Subsection (5)(a) provides that in order for the accused to be convicted of an offence under the section, “the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed”.
Ground 2 is not expressed in terms of any misdirection by the trial judge. But to the extent that Ground 2 might be understood as a complaint about the standard of proof in fact applied at the trial, it has no basis. The trial judge repeatedly directed the jury that it must be satisfied beyond a reasonable doubt that the evidence established each of the elements of s 66EA. His Honour said:

“As a general comment, every charge in New South Wales contains certain allegations which need to be proved beyond a reasonable doubt. These are described by lawyers as the elements of the offence.”

His Honour then directed the jury in relation to each of the elements, and that it had to be established beyond reasonable doubt. Specifically as to the unlawful sexual relationship, his Honour directed:

“… All of you must be satisfied beyond a reasonable doubt that the evidence establishes an unlawful sexual relationship, and that it existed. That is an essential element of the offence.”

As to “which unlawful sexual acts constitute the unlawful sexual relationship”, his Honour directed:

“Each of you individually must be satisfied beyond a reasonable doubt that there were two or more to conclude that there was an unlawful sexual relationship. But you do not all individually have to agree on which ones.”

The first sentence correctly identified the standard of proof. The second sentence was required by s 66EA(5)(c) and (6).
Ground 9 is: “The trial judge ‘made it clear’ that, to convict someone of s66EA, the jury did not have to be satisfied beyond reasonable doubt about anything, and did not have to reach unanimity as to the acts they found proved.”
This ground is developed at [3] and [12] of the Fair Trial submissions by reference to s 66EA(4) and (5). The ground also refers to a statement made by the trial judge (which is the subject of [12] of the Fair Trial submissions, [33] of the Submissions against Conviction and [23] of the Excerpts from Reference Documents), being the words italicised as follows:

“The reason for my question here is predicated on the usual assumption that trial judges are to find facts that are not inconsistent with the jury’s verdict. The jury’s verdict of the offence under s 66EA did not require them to be satisfied beyond a reasonable doubt about anything and, indeed, it didn’t require all 12 of them to be satisfied beyond a reasonable doubt about the same thing. So much is what’s established, I think, in subs (4) and (5).”
Tcpt, 24 June 2020, 26.5-10.

Several points should be made. First, the complaint is not that the trial judge erred in making the statement. To the contrary, the substance of the complaint is that the trial judge’s statement correctly describes the operation of s 66EA. To the extent that the submission is that the statute does not require proof beyond reasonable doubt, it is wrong for the reasons given above. To the extent that the complaint is about the law itself, it does not state a valid ground of appeal.
Secondly, the statement is taken out of the context in which it was made. This occurred after the jury’s verdict, in the course of the proceedings on sentence. The trial judge did not at any point direct the jury that it did not have to be satisfied beyond reasonable doubt about anything. To the contrary, as discussed above, the trial judge gave clear and repeated directions as to the applicable standard of proof.
Thirdly, his Honour was here seeking submissions as to the proper approach to finding the facts for the purposes of sentencing consistently with the jury's verdict, in circumstances where, by subs (5)(c), the jury had not been required to agree on which two or more “unlawful sexual acts” it found proved as constituting the “unlawful sexual relationship”. In that context, the issue being raised in the first part of the italicised passage, while overstating the position, was clarified in the second part of the passage.
Ground 10 is: “The trial judge conceded that, since there were five acts alleged to have occurred on a single occasion and s 66EA left it open for the jury to return a ‘split’ verdict, this would result in a ‘trip to the Court of Criminal Appeal.’”
The context for this ground is that his Honour had been summing up on the alternative counts, in particular on the hypothesis that the jury was not satisfied beyond reasonable doubt that the Crown had established a distinct requirement of s 66EA(1), being that the accused “maintain[ed]” an unlawful sexual relationship with a child: Summing up at 65-66. (See now MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCA 180 at [91]-[93] per Beech-Jones CJ at CL (Ward P, Price, Wilson and Lonergan JJ agreeing).) The alternative counts included five unlawful sexual acts on the one occasion on 5 November 1989 (described at trial as the “Scrub to Pub” incident, as it was the night of the “Scrub to Pub” event): three alleged against Mr Crowhurst (counts 3, 4 and 5) and two alleged against Ms Crowhurst (counts 10 and 11). In this context, the applicants refer to two statements his Honour made in the absence of the jury during the course of the summing up.
The first (Excerpts from Reference Documents at [15]) is the italicised part of the following exchange:

“CROWN PROSECUTOR: But I’m not sure that it was sufficiently clear that it could all be the same verdict – that is, they could give verdicts of guilty on each of the – or any or all of the acts that related to a particular incident.
HIS HONOUR: All right. That’s certainly what I was intending to convey.
CROWN PROSECUTOR: Yes.
HIS HONOUR: I mean, this is so theoretical; this is so abstract. It’s so unreal that people ought to think seriously about drafting these kind of indictments in these kinds of cases again, frankly. Leaving aside that, thank you for that. Mr McMahon.
MCMAHON: Your Honour, the only matter I was going to raise …”
Summing up at 66-67, emphasis supplied.

The applicants submit that “what can be taken from this is that the jury could easily be confused as to how to actually reach a verdict:” Excerpts from Reference Documents at [15]. At its highest, this is a submission that the nature of the charges and the structure of the indictment required clear directions to the jury. But the applicants do not point to any failure on that account, such as an error in the directions given, or a direction that should have been given but was not. This aspect of Ground 10 does not identify a valid ground of appeal.
The applicants also rely (Excerpts from Reference Documents at [16], [17]) on his Honour’s comment four pages later in the transcript, also in the absence of the jury, in the context of discussion about a separate consideration direction:

“CROWN PROSECUTOR: I certainly agree when it comes to the alternatives. It should be given, and the same thing should be said that was said about Evans Head. And particularly because they would then be not satisfied – if they came to consider the alternatives because they were not satisfied of the maintaining element, then certainly a separate consideration direction would be consistent with their non-satisfaction of that.
HIS HONOUR: Of course – again, dealing with the real world, in which we don’t seem to be living at the moment – the Scrub to Pub occasion has five separate counts in it. Imagine what the reaction would be if the jury were, in fact, to come back with split verdicts in respect of that event.
How could they, from a practical point of view? Why should they, from a practical point of view? It’s a matter of legal theory. Of course, they can. But if they were to, it would be a trip to the Court of Criminal Appeal on gossamer wing, to use an expression.”
Summing up at 71, emphasis supplied.

Three points are to be made. First, this was said in the absence of the jury. It is not submitted that the trial judge misdirected the jury in this respect. His Honour’s statement does not otherwise suggest any appellable error.
Secondly, the trial judge was not addressing s 66EA in this passage, still less making a “concession” that it “left it open for the jury to return a ‘split’ verdict”. His Honour was instead referring to what might happen in a hypothetical scenario in which (a) the jury came to consider the alternative counts, and (b) it returned arguably inconsistent verdicts on the alternative counts.
Thirdly, since the jury found each applicant guilty of the s 66EA charge, the alternative counts did not arise for consideration. The subject matter of his Honour’s statement is not relevant to the offences of which the applicants were convicted.
Ground 11 is: “The jury were only required to find a minimum of two acts proven and did not have to agree on which acts.”
To the extent that this is a complaint that s 66EA allowed for a “split verdict”, that is not the effect of the section. By s 66EA(1), an adult who maintains an unlawful sexual relationship with a child is guilty of an offence. Subsection (5)(a) provides that the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed. The jury must be unanimous with respect to that element.
However, by s 66EA(5)(c), the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship. By subs (5)(b), the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence. Those provisions were enacted in response to recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse which were directed to “the perceived difficulty in providing particulars and securing unanimity amongst the jury in cases where evidence of repeated sexual abuse is given by children”: MK at [96]; see also at [19], [22], [48] and [64].

Disposition

None of Grounds 2, 9, 10 or 11 identifies any viable ground on which the convictions may be challenged.
Ground 2 on its face raises a question of law, although it may really be a complaint about the directions that were given. Ground 9 on its face appears to be a complaint about a direction, but is in fact about the law itself. Ground 10 is a complaint that there was, or might have been, a “split verdict”. Ground 11 is framed as a question of law. In circumstances in which leave is arguably not required in respect of at least some aspects of some of these grounds, and the grounds significantly overlap, it is convenient to grant leave to the extent necessary but to dismiss each of Grounds 2, 9, 10 and 11.

Ground 3

Ground 3 is: “The applicants did not receive a fair trial. They suffered a ‘complete forensic disadvantage’ due to the passage of time.”
There are several strands to the applicants’ argument.

Sufficiency of particulars

First, the applicants submit at [3] of the Fair Trial submissions as to s 66EA:

“… sub sections (4) and (5) immediately establish that a fair trial is not possible when charged under this perverse law. No proof is required. The prosecution is not required to provide specifics of any allegations. The jury does not have to be satisfied beyond a reasonable doubt about anything and they don’t have to be unanimous.”

The applicants’ complaints about the law itself, and about what it required the Crown to prove and to what standard, have been addressed above. As to the particulars (i.e., the “specifics of any allegations”) required to be given, s 66EA(4) provided:

(4) In proceedings for an offence under this section, the prosecution—
(a) is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, and
(b) is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.

To the extent that the applicants’ complaint concerns the adequacy of the “specifics” that were in fact provided, the Crown relies on a combination of the indictment, the Crown Prosecutor’s opening address and the summary of charges given to the jury in table form (MFI 2). The Crown’s submission should be accepted that together, these provided particulars of the following matters.

The period during which the unlawful sexual relationship that each applicant was alleged to have maintained with the complainant existed.

A number of identified occasions on which the applicants allegedly committed unlawful sexual acts relied on in relation to both the s 66EA charges (counts 1 and 9) and the alternative counts. Specifically in opening, these were addressed as follows:

count 2: the first incident, a day or a few days before the “Scrub to Pub” incident: Tcpt, 5 February 2020, at 8.38-9.11, 9.28;

counts 3, 10, 4, 11 and 5: the “Scrub to Pub” incident: at 9.13-11.37;

counts 6, 7, 12 and 13: the “suspenders” incident: at 11.39-12.21;

counts 8 and 14: the “anal sex” incident: at 12.23-39;

counts 15 and 16: the “cold sore” incident: at 12.48-13.12.

Other specific unlawful sexual acts relied on as part of the s 66EA charges against Mr Crowhurst: an incident in Brisbane (at 13.14-20) and the “passionate kiss” incident (at 15.32-38).

The locations at which the incidents in (2) and (3) above occurred.

The Crown also relied on other unlawful sexual acts that took place on occasions other than those the complainant was able to particularise. The Crown alleged that the complainant slept over at the applicants’ house, in their bed, and frequently had sex with both applicants (Tcpt, 5 February 2020, 2.20-27), and that there was sexual activity on many more occasions than those the subject of the alternative counts (at 8.28; also at 12.39). This approach was permissible pursuant to s 66EA(4)(a).
Finally, the Crown submits that neither applicant made any complaint at trial about the sufficiency of the particulars. Save for exceptional cases, parties are bound by the conduct of their counsel: Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33 at [54] per Kiefel CJ, Keane and Steward JJ. This Court is not the place for a party to attempt to put forward a different case from that run at first instance: SA v R [2024] NSWCCA 50 at [42] per Davies J (Ward P and Garling J agreeing). This is a further reason for refusing leave to argue this aspect of Ground 3.

Forensic disadvantage

The applicants submitted (Fair Trial submissions at [5], [6], [7] and [27]): “we were at a complete forensic disadvantage to be able to defend ourselves in this matter”, given that 31 years had elapsed since the alleged events in 1989. They refer to a series of absent potential witnesses, some of whom are deceased. But again, the absence of these witnesses was not raised in support of a submission as to forensic disadvantage at the trial.
Counsel for both applicants sought directions addressing forensic disadvantage (MFIs 16 and 17), which covered substantially the same matters, including other potential witnesses who were either dead or unable to be located. The Crown agreed with his Honour that the direction was appropriate (Tcpt, 17 February 2020, 654.49-655.9). Counsel for both applicants addressed the jury about forensic disadvantage, including the absent witnesses and missing records: Tcpt, 18 February 2020, 761.42-47, 764.46-765.46; see also at 777.48, 779.15. The trial judge gave a detailed direction, by reference to the matters the applicants had raised, that the applicants had suffered significant disadvantage, and that the jury was required to take that into account when considering whether the Crown had discharged the heavy onus of proof beyond reasonable doubt: Summing up at 13-14. The direction complied with s 165B of the Evidence Act 1995 (NSW). There was no application for further directions. In those circumstances the absence of witnesses or records did not make the trial unfair: R v Edwards [2009] HCA 20; (2009) 83 ALJR 717 at [31].

Evidence of Vicki Brown

The applicants submit that the witness, Ms Brown, was “used as a witness for the Crown” and was “seen as a hostile witness due to still being friends with us … yet the same treatment was not afforded to the complainant’s friends”: Fair Trial submissions at [5]. This aspect of Ground 3 does not raise any relevant irregularity.
The Crown acknowledged at the hearing of the appeal that Ms Brown, who lived with the applicants during the relevant period, gave evidence that she never saw anything untoward, and that her evidence was broadly inconsistent with the Crown case. The Crown had asked some leading questions of Ms Brown without objection (e.g. at Tcpt, 10 February 2020, 332.15). The Crown then sought leave to cross-examine under s 38 of the Evidence Act, which was not opposed (at 334.4-338.23). The Crown cross-examined pursuant to the leave without objection (at 339.18-342.10), including as to whether Ms Brown had tailored her evidence to support the applicants (at 340.20-25). There was no error or irregularity in that course.

“Another new statement”

Finally under this ground, the applicants submit that “new memor[ies]” surfaced and new statements were submitted to the Court whenever the Crown’s “story became flawed”: Fair Trial submissions at [5]; see also the “Summary of the case” submissions at 1. The applicants give no details of these complaints, which are without substance.
To the extent that this is a complaint about statements obtained from the complainant during the trial, that occurred in the following circumstances, which do not disclose any irregularity.

At the suggestion of the trial judge (Tcpt, 5 February 2020, 19.36-23.4), a statement was obtained on 6 February 2020 (before the complainant gave evidence) addressing the circumstances in which she was diagnosed in 1991 with chlamydia and in 1992 with herpes: MFI-6.

The applicants made calls for messages between the complainant and the witness Belinda Tink and other witnesses: Tcpt, 10 February 2020, 264.34-45; 11 February 2020, 359.45, 361.22. This resulted in the production of a statement from the complainant attaching messages with one of the other witnesses (at 359.38-40); a large number of text messages (at 370.36; 378.44; 398.10, MFI 12); and, apparently, a further statement by the complainant (at 370.38). Although counsel for Mr Crowhurst said “the introduction of new evidence by the Crown” was “an unfortunate feature of this trial” (at 361.27), it was not suggested that the applicants could not fairly deal with the evidence. For example, a voir dire by way of Basha inquiry was held in relation to one message giving rise to particular uncertainty (Tcpt, 12 February 2020, 466.1-467.20): R v Basha (1989) 39 A Crim R 337 at 339. The complainant was cross-examined on the messages (at 459.27-464.9, 468.5-473.26), including exchanges discussing the evidence the witnesses might be able to give, such as one with Ms Tink as to when an event occurred (at 469.25-470.50). The Officer in Charge, Detective Ewing, was also cross-examined on the fact that the messages had been produced to him only the day before (at 397.17-398.10).

There was also a statement dated 10 February 2020 produced by Dr Natalie Edmiston about chlamydia and herpes (Tcpt, 11 February 2020, 360.14-17, 368.5). She was not ultimately called. The parties agreed some very limited facts distinguishing Human Papillomavirus (HPV) from Herpes Simplex Virus (HSV) (Ex Q).

Disposition

None of the matters raised by the applicants demonstrates any unfairness, wrong decision on a question of law or other miscarriage of justice. In circumstances where the consequences of the passage of time were the subject of submissions by counsel and detailed directions by the trial judge, and no objection was taken nor any further direction sought in relation to any of the issues raised under Ground 3 (such that leave is required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules as well as s 5(1)(b) of the Criminal Appeal Act) the appropriate course is to refuse leave on the basis that Ground 3 would otherwise be dismissed.

Ground 4

Ground 4 is: “Detective Ewing (police officer in charge of the investigation) failed to properly investigate the case and coached a witness.”
As to the first aspect of this ground, the applicants say that Virginia Crawford was a boarder at their home while they lived at Lismore: Fair Trial submissions at [6]. They ask, “why didn’t Detective Ewing [the Officer in Charge] make any attempt to locate her?”; they describe her as "someone that could have been regarded as a key witness in [this] case”; and they submit that this “does raise concerns that during the two years it took to bring the matter to trial, the case was not fully and properly investigated by Detective Ewing”: Fair trial submissions at [8].
Under cross-examination, Detective Ewing agreed that he had been made aware at one time or another about a student by the name of Virginia: Tcpt, 12 February 2020, 402.36. He said he had not made enquiries in relation to her because all he had was the name Virginia (at 402.3). That was consistent with the complainant’s evidence at trial. She said in chief that the applicants had had students living with them “early on” at the house at Lismore (Tcpt, 5 February 2020, 46.8). When asked in cross-examination about one called Virginia, she said she believed that it was very early on that Virginia stayed there (Tcpt, 6 February 2021, 121.6-12), and that she believed Virginia was not there for most of the time that the applicants were there (at 201.29). The first reference at trial to the surname Crawford appears to have been by counsel in cross-examination (at 216.43). Mr Crowhurst gave evidence confirming the name Virginia Crawford and saying that he had made extensive enquiries in relation to her whereabouts but had been unable to find her: Tcpt, 13 February 2020, 487.24-33.
None of that suggests any irregularity. Still less is there any evidentiary support for the applicants’ speculative question whether Detective Ewing had been “concerned that maybe she [Ms Crawford] would tell the truth and his case would fall over?” (Fair Trial submissions at [8])
The trial judge gave a clear direction to the jury, specifically mentioning Virginia Crawford among other matters, to the effect that both accused had been placed at a significant disadvantage in both testing the complainant’s account and presenting information in their own defence. The jury was instructed that it needed to take that significant disadvantage into account when considering whether the Crown had discharged the heavy onus of proof beyond reasonable doubt: Summing up at 13-14. There was no application for further directions. Nor did counsel appearing for the applicants suggest that Detective Ewing had failed to investigate the case properly.
As to the second aspect of this ground, the applicants’ submissions did not give details of the allegation of coaching. However, the issue appears to be connected with the evidence of Belinda Tink that she had seen Mr Crowhurst and the complainant engage in a “passionate” kiss. Detective Ewing had obtained the assistance of Western Australian police to take a statement from Ms Tink. By an email to the assisting officer (Ex N), Detective Ewing had attached a statement in New South Wales Police Force format which contained various topics, including “Describe the kiss. Was it passionate? Innocent kiss on the che[e]k. How were CROWHURST and [the complainant] holding each other.”
Detective Ewing was recalled and gave evidence about this issue: Tcpt, 12 February 2020, 382.40-387.33. He said that he spoke briefly with Ms Tink and asked if he could seek the assistance of Western Australian police to obtain a statement (at 383.47). When asked where the word “passionate” came from, Detective Ewing answered that he believed it came from Ms Tink when he first spoke to her (at 386.45). Although objection was taken to that answer (on the ground that it used the word belief), there does not appear to have been a ruling on it. Detective Ewing was further cross-examined about the issue (at 390.36-396.17). He said that he regarded the topics in the pro-forma statement to be a guide for the officer taking Ms Tink’s statement (at 394.25); that he would assume the officer had a basic level of training that was the same as his (at 391.43-44); that his training included being taught to ask open questions to avoid contaminating the witness’s memory (at 390.36-43); but that he wasn’t there when the statement was taken and couldn’t answer how the investigator asked the questions (at 395.24-25). He also said that from the information that he had received from the complainant and from his earlier phone call with Ms Tink, he understood that Mr Crowhurst and the complainant had been holding each other (at 395.48, 396.13-17).
Under cross-examination, Ms Tink was asked whether the word “passionate” had been suggested to her either by the complainant or by the police officer who took the statement: Tcpt, 10 February 2020, 273.50-274.9. She said that she was “pretty sure, yes, that that was my word”, and explained that the police officer who had taken her statement in Western Australia had specifically said that she could not ask leading questions (at 274.7-37).
None of that provides any evidentiary foundation for the serious allegation that Detective Ewing coached Ms Tink; quite the opposite. The issue was pursued to its limit, and possibly beyond, by counsel at the trial. Counsel did not suggest that Detective Ewing had coached any witness.
There is no proper basis for the allegations that Detective Ewing failed to investigate the case properly or coached any witness. Nor were those issues raised by way of objection or application for direction at trial. Leave to appeal should be refused.

Ground 5

Ground 5 is: “The Office of the Director of Public Prosecutions (ODPP) kept extending the time until 1 December 2018 to charge the applicants knowing that the new version of s66EA did not require it to provide ‘any evidence.’”
At [10] of the Fair Trial submissions, the applicants say that after they first became aware of the allegations against them in May 2018, the ODPP sought several extensions of time that were granted by the Court, and “No charges were brought against us between early May 2018 and 30^th November 2018. The first charge appeared against us on 1^st December 2018, the day that S66EA was enacted in its current incarnation.” (See also the “Summary of the case” submissions at 1.) The Fair Trial submissions go on to imply at [11] that the ODPP deliberately waited because “the ODPP knew they did not require any evidence as they were essentially not required to actually prove anything to gain a conviction under the current incarnation of S66EA.”
The assertion that the applicants were not charged before 1 December 2018 is incorrect. The Crown relies on a chronology of court listings set out in an affidavit of a solicitor employed in the Office of the Director, made by reference to the Local Court bench sheets and Court Attendance Notices. These show that the initial charges (relating to offences contrary to s 66C(1)) were laid against each applicant on 7 June 2018. This was followed by a series of court listings and then the laying of the s 66EA charges against each applicant on a date between 5 February and 5 March 2019.
To the extent that the applicants allege deliberate delay in laying the s 66EA charges, the allegation lacks an evidentiary basis. As the Crown points out, pursuant to s 66EA(14), charges under that section could only be initiated by or with the approval of the Director of Public Prosecutions. Charge certificates in respect of each applicant were issued on 5 March 2019. As the Crown submits, the timing of the laying and certification of the s 66EA charges was unremarkable. No irregularity or unfairness has been shown.
Moreover, the delays now relied upon were not raised at trial. Leave to appeal should be refused with respect to this ground.

Ground 6

Ground 6 is: “The Crown Prosecutor failed to fully disclose the reason an ODPP solicitor was dismissed from the trial, and the applicants later learnt that the solicitor had coached the complainant.”
The applicants’ complaint is that the Crown Prosector failed to disclose the full extent of certain matters relating to a communication by his instructing solicitor, Mr Peter Woods, to the complainant on the afternoon of 5 February 2020: Fair Trial submissions at [13]-[16], [19]-[22]. Although the applicants accept that there was some disclosure at the trial of the matters now complained of, they submit that the disclosure was incomplete.
This is a complaint that, within the meaning of the third limb of s 6(1) of the Criminal Appeal Act, there was “a miscarriage of justice” by reason of an irregularity at trial. There is a question about the material to which this Court may have regard for the purpose of determining this ground, which is discussed below. For present purposes it is convenient to put that question to one side in order to explain the applicants’ complaint. The arguments they wish to advance on appeal proceed on the footing that the circumstances in which the communication between Mr Woods and the complainant occurred, and was partly disclosed to the applicants, are as follows.

The complainant commenced her evidence in chief on 5 February 2020. She gave evidence of several unlawful sexual acts that were relied on in support of the s 66EA charges, as well as the alternative counts. These included acts which took place during the incident when Mr Crowhurst suggested that the complainant wear Ms Crowhurst’s suspenders (the Suspenders Incident). The complainant gave evidence that on this occasion she rubbed her pubic bone on Ms Crowhurst's clitoris; Mr Crowhurst performed cunnilingus on the complainant; and Mr Crowhurst had penile/vaginal intercourse with the complainant in the presence of Ms Crowhurst: Tcpt, 5 February 2020, 74.19-76.6. Those acts answered particular 5 of count 1 and alternative count 7 (both against Mr Crowhurst), and particular 7 of count 9 and alternative count 12 (both against Ms Crowhurst). However, the complainant did not give evidence going to the acts constituting alternative counts 6 and 13 (respectively, penetration of the complainant’s mouth by Mr Crowhurst and penetration of the complainant’s vagina by Ms Crowhurst’s fingers). The trial judge adjourned the proceedings until the following day.

After court on the afternoon of 5 February 2020, Mr Woods met with the complainant in the presence of a Witness Assistance Service Officer, Ms Jenny Dowling. What occurred at that meeting led to disciplinary action against Mr Woods, and in turn to a decision of the Industrial Relations Commission of 13 July 2021 (IRC Decision) determining an employment claim made by Mr Woods: Woods v Industrial Relations Secretary on behalf of the Office of the Director of Public Prosecutions [2021] NSWIRComm 1054. (The IRC Decision was annexed to an affidavit of Mr Crowhurst dated 27 November 2024 and was admitted on the appeal on a provisional basis, and only for the purposes of establishing the factual material contained within it as opposed to the Commission’s conclusions, as discussed below.) The IRC Decision records at [2], [5] and [6] that on 6 February 2020, Mr Woods gave an account to his manager, Ms Aranka Zsidi, of what had occurred in his meeting with the complainant on 5 February. Ms Zsidi made a file note of Mr Woods’ account.

The description in the IRC Decision of what occurred on 5 February was drawn from Ms Zsidi’s file note as follows (“I” referring to Mr Woods):

“I said: ‘How are you going?’
[The complainant] said: ‘I’m OK.’
I said: ‘Um, just remember you are giving evidence. You have to give detailed evidence of whatever sexual acts took place, whether it was digital…’ and I lifted a finger, middle finger, up and moved around ‘…or oral’ making a nodding movement with my head or whatever.
[The complainant] said: ‘Yes, I understand.’
[Ms Dowling] said: ‘That was inappropriate’ and said it in front of the complainant.
I said: ‘I’m sorry. I was just trying to illustrate my point.’
[The complainant] seemed OK.
[The complainant] said: ‘That’s Ok.’”

It is important to note that Mr Woods’ words and gestures as recorded in the file note related to both fellatio (which was the subject of alternative count 6 against Mr Crowhurst) and digital penetration (which was the subject of alternative count 13 against Ms Crowhurst).

His Honour also found a subsequent incident of penile/anal intercourse by Mr Crowhurst on the complainant when in the company of Ms Crowhurst. He found that there was regular sexual activity between the applicants and the complainant when she slept over, including fellatio, penile/vaginal intercourse and cunnilingus.
His Honour accepted that there had been separate acts of sexual misconduct on the complainant by each of the applicants when the other was not present.

Findings regarding Mr and Ms Crowhurst

With respect to Mr Crowhurst, his Honour found that the sexual acts proved beyond reasonable doubt were digital penetration, cunnilingus in company, penile/vaginal intercourse in company, penile/anal intercourse in company and indecent assault in the form of kissing the complainant and also touching, kissing and sucking her breasts in company.
With respect to Ms Crowhurst his Honour found that the sexual acts proved beyond reasonable doubt were digital penetration in company, cunnilingus in company, being in company with Mr Crowhurst when he had both penile/vaginal and penile/anal intercourse, indecent assault by way of touching, kissing and sucking the complainant’s breasts in company, and indecent assault by way of rubbing the complainant’s pubic bone.
The complainant’s evidence was that she stayed at the Crowhurst’s as often as she could, and that regular sexual activity occurred on those occasions. His Honour concluded that it was not possible to quantify the number of occasions which constituted the “regular activity” beyond the assertion it was “as many times as possible”. He found her relationship with the applicants continued for the period they were in Lismore, with its frequency reducing (but not ceasing) due to a visit from Mr Crowhurst’s mother who lived in the United Kingdom. His Honour sentenced the applicants on the basis that the sexual relationship commenced with Mr Crowhurst on 4 November 1989 and with Ms Crowhurst on 5 November 1989 and continued until the beginning of August 1990.
As to whether the criminal conduct of either of the accused caused the complainant to contract either chlamydia or herpes, his Honour found that it was impossible to attribute the contraction of any diseases to the period for which the applicants were to be sentenced.
His Honour found no difference between the moral culpability of Mr and Ms Crowhurst. Whilst he accepted that the initial idea of bringing the complainant into the relationship was Mr Crowhurst’s, Ms Crowhurst played the role of an “active facilitator” in the corruption of the child, despite some short-lived reluctance. His Honour found the sexual relationship over about a period of 10 months must be regarded as a serious example of an offence under s 66EA.
His Honour made detailed findings about the subjective cases of both applicants, to which I will return when considering ground 15 which asserts that the sentences were manifestly excessive. His Honour made findings with respect to each of the applicants’ medical conditions. He held that, this being the first time in custody for each, there should be a finding of special circumstances.
With respect to both applicants his Honour took into account testimonials as to their good character in the sentencing synthesis but noted that given the nature of the offences in question, good character would be given little weight.
His Honour also considered the medical issues suffered by the applicants’ children. His Honour accepted the conditions which the Crowhurst’s children suffer from were serious. He held, however, that while the circumstances affecting the children (and the grandchildren of the applicants) are truly unfortunate, he was not satisfied that the hardship to them resulting from the incarceration of both applicants could be described as wholly, highly or truly exceptional. He did accept, however, that the illness of the children would create difficulties in terms of visitation of their parents, as would the impact of COVID-19 restrictions rendering the applicant’s time in custody more onerous.
Whilst his Honour held that the offending conduct of the applicants did not constitute a breach of a trust, due to the age disparities between the complainant and offenders the offending was, as previously noted, objectively serious. His Honour referred to the victim impact statement. He found that the need for general deterrence in cases involving the sexual abuse of a child as manifest and was to be given great weight in sentencing.

Dealing with the appeal grounds

Some of the grounds as identified in [202] above can be dealt with together as the Crown has done in the CWS. I will adopt that methodology. I will refer as relevant to the applicants’ submissions as they can be distilled from the material they have filed. Allowance must be made for the fact that they were self-represented on appeal and their materials may not be in the usual, structured form. It is not necessary, however, to refer to every aspect of their written materials or the “reference documents” mentioned in them.

Ground 12: The trial judge failed to ask the jury which of the acts that make up s 66EA it found proved

Ground 13: The trial judge did not follow the Bench Book when sentencing the applicants. The Bench Book states that when a judge does not require the jury to identify the acts which it found proved, the judge must sentence an accused in the way most favourable to them

Ground 14: The trial judge “went behind” the jury’s verdict to bring additional charges against the applicants, which charges had not been certified by the ODPP

The applicants appear to submit that a trial judge should enquire of the jury which of the acts relied upon in support of a charge under s 66EA it found proved and if the trial judge fails to do so, the offender must be sentenced on the basis most favourable to them. As the Crown observes, this was not a submission made on behalf of either applicant in the sentence proceedings. Indeed, counsel for each applicant submitted that it was up to the trial judge to find the facts relevant for sentence. Of course, the facts found by a sentencing judge must be consistent with the jury’s verdict and if adverse to the offender the trial judge must be satisfied of the matter beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].
The applicants’ reliance on Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 (see [21] of the Applicants’ Submissions in Relation to the Manifestly Excessive Sentence) is misguided. The corresponding provision in the South Australian criminal law (s 50 of the Criminal Law Consolidation Act 1935 (SA)) required jury unanimity with respect to the offending. That is not the position for a conviction under s 66EA. Indeed, the issue as to jury unanimity is dealt with specifically in s 66EA(5)(b) and (c). Section 66EA(5) provides:

(5) In order for the accused to be convicted of an offence under this section—
(a)  the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, and
(b)  the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, and
(c)  the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.

For the jury to be satisfied of an offence under s 66EA, it must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed. An unlawful sexual relationship is where an adult engages in two or more unlawful sexual acts with a child over any period. The jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if that act was charged as a separate offence. Nor is the jury required to agree on which unlawful sexual acts constitute the unlawful sexual relationship. The principles in Chiro v The Queen do not apply to sentencing under s 66EA: R v RB [2022] NSWCCA 142 at [42]-[45] (Fagan J, Harrison and Wright JJ agreeing). When sentencing an offender for an offence under s 66EA, the judge is not required to sentence on a basis most favourable to the offender: Massaquoi v R [2024] NSWCCA 125 at [65], [88] (Wilson J, Mitchelmore JA and Garling J agreeing).
It is well settled that there is no obligation on a judge to make enquiries of a jury as to the basis of its verdicts: R v Isaacs (1997) 41 NSWLR 374 at 379-380 (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ); Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 14 (Gleeson CJ, Gummow and Hayne JJ); Fuller v R [2022] NSWCCA 203 at [7]-[9] (N Adams J, Brereton JA and Adamson J agreeing). Accordingly, on conviction for an offence under s 66EA, there is no requirement for a judge to enquire of the jury which of the unlawful sexual acts which make up an offence under s 66EA it found established. In any event, given the jury is not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship, such an inquiry would be futile.
In this case the jury found each of the applicants guilty of an offence under s 66EA. The task of the sentencing judge was not to determine the basis of the jury’s verdicts but to find facts for the purpose of sentencing the applicants consistent with those verdicts (see Fuller v R at [105] (N Adams J, Brereton JA and Adamson J agreeing)).
There is no error demonstrated in the way the sentencing judge approached this aspect of the sentencing task. His Honour undertook the fact-finding exercise in the appropriate way. He stated:

“…The conventional approach following conviction after trial is for a sentencing judge to determine facts in a manner not inconsistent with the jury’s verdict. Any matter of fact found that will aggravate the sentence to be imposed is to be found …applying the standard of satisfaction expressed as “beyond reasonable doubt.””

His Honour applied that approach in his remarks on sentence.
Additionally, as the Crown submitted with respect to ground 13, the Bench Book cited by the applicants in their submissions did not contain the principle relied upon, that is, to sentence the accused in the most favourable way to them. In any case, even if it did, as was correctly stated by the Crown, the Bench Book does not represent any kind of binding authority with respect to procedures during a criminal trial: see for example SB v R [2020] NSWCCA 207 at [110] (Rothman J, Hoeben CJ at CL and Hamill J agreeing; see also [179] per Hamill J); Rassi v R [2023] NSWCCA 119 at [108] (Hamill J, Beech-Jones CJ at CL and Button J agreeing); see also Dimitriou v R [2025] NSWCCA 18 at [100] (Mitchelmore JA, Basten AJA and Wright J agreeing).
As to ground 14, the applicants appear to assert that the trial judge “went behind the jury’s verdicts” by bringing additional charges, which were not certified as making up the offences under s 66EA. They submit the trial judge found them guilty of indecent assault charges under s 61E of the Crimes Act that had not been brought against them and for which they were not convicted by the jury (see [3] and [7] of Applicants Submissions In Relation to the Manifestly Excessive Sentence). They assert that those convictions cannot stand. They say having convicted them of those indecent assault charges meant the judge was able to add further years to the sentence (see [7] Applicants Submissions in Relation to the Manifestly Excessive Sentence).
The applicants submit that:

“10. Judge [McLennan] was handed a guilty verdict for S66EA against us both. The charge of S66EA is made up of involved acts. Judge [McLennan] made no attempt to ascertain from the jury which of the involved acts they had found to be proved. The jury did not have to be unanimous as to which of the 18 charges of S66C against us they found proved and were only required to each be satisfied that 2 of the 18 charges were proved, but they did not have to agree on which ones.
11. It would appear that Judge [McLennan] has come to his own conclusions outside of the Jury’s verdict of our guilt on certain charges, added additional charges and passed his own verdict of guilty on them. This completely contradicts his statement that [he] made that the role of a judge in a jury trial is not to determine guilt or innocence of the accused.
12. By bringing an additional 4 charges against us in addition to the 18 charges already brought against us, [he] opened the real possibility that he may well have found us guilty of charges that the jury did not.”

The applicants plainly misunderstand what had occurred at the trial. There had been particularised as some of the unlawful sexual acts in the s 66EA charges, acts of indecent assault (see particulars 8 and 9 of count 1 as against Mr Crowhurst and particulars 5 and 6 of count 9 as against Ms Crowhurst). The trial judge gave appropriate directions to the jury about the indecent assault matters as particulars of the s 66EA counts. In order to be satisfied that the Crown had proven the elements of the s 66EA counts, the jury had to be satisfied beyond reasonable doubt that the applicants had engaged in two or more of the particularised unlawful sexual acts with the complainant (which unlawful acts included the indecent assaults) and therefore had maintained an unlawful sexual relationship with her. Once the jury was satisfied that the elements of the s 66EA charges had been made out, the jury was not required to render verdicts on any other matters. There were no charges of indecent assault on which the jury was required to render verdicts. As stated, acts which constituted indecent assault were particularised as part of the two or more unlawful sexual acts engaged in by the applicants with the complainant. The trial judge was not required to enquire of the jury if it had found any of the particulars of the s 66EA counts were proved, and if so which ones. There is simply no truth to the assertion that the sentencing judge added other convictions to the s 66EA counts.
The Crown notes in its written submissions (CWS [168]) that, to a significant extent, for each of these grounds, the applicants are relying on arguments which were contrary to the way their respective counsel ran the sentence proceedings below. As the authorities referred to by the Crown state, an appeal to this Court is not an opportunity to revise and reformulate the case run below: see for example Zreika v R [2012] NSWCCA 44 at [81]; Owen v R [2022] NSWCCA 214 at [63].
There is no substance to any of grounds 12, 13 or 14. I would refuse leave to argue those grounds and dismiss them.

Ground 15: The sentences were manifestly excessive

The relevant principles applicable to an assessment of manifest excess are well known. They were stated by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
• It is not to the point that this court might have exercised the sentencing discretion differently.
• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
• It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

In He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95, Bell P (Gleeson and McCallum JJA agreeing) stated at [42]:

“To this oft-cited summary of principles, may be added the following:
(1) Sentencing is an “exercise of intuitive synthesis of all of the material before the sentencer in order to serve purposes that often pull in different directions” – Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Tammer-Spence v R [2013] NSWCCA 297 at [56].
(2) Each case has to be considered on its own merits, and no case is entirely similar to any other – Windle at [61].
(3) There is a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate – Windle at [61].
(4) An applicant seeking to challenge a sentence on the ground of manifest excess has a “very heavy practical burden”, and must show a kind of disproportion which is so “manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law” – R v Elemes [2000] NSWCCA 235 at [22]-[23].
(5) The basis for appellate intervention is in accordance with the principles set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 – Matthews v ASIC [2009] NSWCA 155 at [181]; Dowling at [59].
(6) The starting point of the analysis as to whether a sentence is manifestly excessive is to identify the nature of the offence(s) – Turner at [68].
(7) Whether a sentence is manifestly excessive is a conclusion, and it is not necessary to identify any particular error in the process – Dinsdale at [6]; Simmons at [30].
(8) Whilst a history of sentencing might establish a range of sentences imposed, it does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range – Martinez v R [2020] NSWCCA 250 at [39].
(9) Thus, the use of statistics is a somewhat blunt instrument when seeking to establish manifest excess, and statistics may be of limited utility in a particular case and should not be given undue weight – Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]; Fogg v R [2011] NSWCCA 1 at [59]-[60]; Windle at [62]; Furia v R [2010] NSWCCA 326 at [74].
(10) Instead of a comparison of the sentences with statistics, when assessing whether a particular sentence is manifestly excessive, it is important to consider the specific findings as to the objective seriousness of the offence and the culpability of the offender – Holloway v R [2011] NSWCCA 23 at [85]; Windle at [64].”

In so far as can be discerned from their written submissions, the applicants contend that the sentence was manifestly excessive because the sentencing judge added additional charges and made his own determination of guilt on them. This, they say, meant additional years were added to the sentence. As I have found above, there is no substance to this assertion.
The applicants also contend that because the sentencing judge did not make an inquiry of the jury as to the offences to which it found established as foundational offences for the s 66EA charges, he did not make appropriate factual findings. It is submitted that his determination of guilt outside of the jury’s verdicts resulted in a manifestly excessive sentence being handed down. This submission is a repetition of the matters I have already rejected as being without substance. It does not assist them on this ground either.
The applicants submitted that Ms Crowhurst was found guilty of “one less” offence than Mr Crowhurst yet received the same sentence. This submission proceeds on the false premise that the applicants were convicted of more than one offence. Each was only convicted of the s 66EA offence. The sentencing judge did make findings as to the nature of the unlawful sexual acts each of the applicants engaged in, but that was only for the purposes of his factual findings necessary for the sentencing process, including to assess the objective seriousness of the offending by each applicant.

The applicants also repeat the submission that the “foundational offence” under s 66C of the Crimes Act for which they were each convicted has a maximum penalty of 8 years. They were not convicted of any offence under s 66C. The offence for which they were each found guilty by the jury was under s 66EA. It carried a maximum penalty of life imprisonment.
None of the matters raised by the applicants in their written materials supports any findings that the sentences imposed on each of them was affected by an error of principle or is plainly unjust.
As has been stated, each of the applicants received a sentence of 13 years imprisonment with a non-parole period of 8 years. They assert those sentences are manifestly excessive. I have dealt with, and rejected, the specific grounds raised by them. I have referred to the findings made by the sentencing judge for each of them above. Those findings detail the nature of the sexual acts each of the applicants engaged in with the complainant and the length of the unlawful sexual relationship each had with her.
His Honour made subjective findings about each of the applicants. He took into account that they were each of prior good character and are unlikely to reoffend. He considered their health conditions and the impact this would have on their time in custody. He made a finding of special circumstances for each of them.
There is no demonstrated error in the way the sentencing judge approached the sentencing exercise. As his Honour found, the conduct of the applicants involved the corruption of the child complainant. This was for the sexual gratification of the applicants. His Honour’s finding that these were serious examples of offending under s 66EA was open to him.
His Honour took into account the maximum penalty and imposed sentences that were well within his sentencing discretion. I do not consider that the applicants have demonstrated that the sentences were manifestly excessive.
I would grant leave to appeal on this ground but dismiss it.

Ground 16: Post sentences lock up in excess of 200 days.

The applicants say they have been locked in their cells for over 200 days following sentence. As the Crown says, this appears to be related to lock-downs in custody by reason of the COVID-19 pandemic.
Submissions on the possible impact of the COVID-19 pandemic on the conditions of custody were made by counsel for Mr Crowhurst at the sentencing hearing, including on the limitations this would mean for family visits. In his remarks on sentence, the sentencing judge took these matters into account and noted the risk of COVID-19 infection of the applicants was slight.
In so far as this ground deals with post-sentence matters in circumstances where no error has been demonstrated in the exercise of the sentencing discretion, it is relevant to refer to Toller v R [2021] NSWCCA 204 where at [20]-[25] the following was stated:

“20 This Court’s power to intervene in a sentence is generally not enlivened unless error of the kind set out in House v The King (1936) 55 CLR 499 at 504 to 505 is established (Betts v R (2016) 258 CLR 240; [2016] HCA 25 at [10]; “Betts”). Consistent with that principle, the general position is that any review of a sentence in light of events subsequent to the imposition of that sentence which affect the harshness of prison conditions is exclusively a matter for the executive government (R v Munday (1981) 2 NSWLR 177 at 178).
21 The material sought to be relied upon by the applicant constitutes fresh or new evidence in the sense that it was not material that was adduced before the sentencing judge. The receipt of such evidence is generally governed by the principles just noted. Hence, one circumstance in which such evidence is received is the so‑called usual basis” which concerns evidence received in relation to this Court’s “independent exercise of [the sentencing] discretion” (Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [43]). However, this is confined to cases where House v The King error has been shown, which is not this case.
22 Otherwise, it has been accepted that in some circumstances this Court can receive new evidence where it is necessary to avoid a miscarriage of justice (Betts at [10]). The circumstances in which evidence not adduced at the time of the sentencing hearing can be adduced in this Court, other than on the “usual basis”, are very limited, although not necessarily closed. Two particular categories of such evidence are evidence that should have been, but was not, adduced because of incompetent representation (see for example Rae v R [2019] NSWCCA 284) or concerns medical conditions that the applicant was subject to at the time of sentencing but was not revealed to the sentencing court (see Hoang v R [2020] NSWCCA 324 at [16] to [22]).
23 However, as a general proposition, evidence concerning society-wide impacts affecting the conditions in custody that occur after the time that the prisoner was sentenced has not been received and that has not been accepted as a basis for interfering with a sentence. Thus, in Cabezuela v R [2020] NSWCCA 107 at [131] to [132], Walton J, with whom Hoeben CJ at CL and Harrison J agreed, said after reviewing (at [129] to [130]) some of the authorities just noted:
“Here, the evidence of COVID-19 was directed to the additional burden that the appellant may suffer in custody due to his age and health, a factor (in terms of age and health) which was given considerable weight by the sentencing judge. The new evidence relied upon by the appellant may not be utilised to impugn the sentencing judgment which is not otherwise susceptible to challenge on the manifest excess grounds. There is no challenge to the sentencing judge’s assessment of the subjective factors and I have found that the sentence imposed was, even having regard to a strong subjective case, not open to challenge on a manifest ground.
The third and related consideration then is that, this is not a case where the receipt of the material in question may have impacted upon the sentence imposed upon the appellant. This is not a case where a comparatively short sentence may have been affected by new evidence of an additional burden which fell upon the appellant in the corrections system. Here, as I have found, the nature of the offences and the offending are of such seriousness that, even if substantially greater weight were given to these subjective factors of age, infirmity of health and additional custodial restrictions such as limitations on contact and exercise due to the effects of COVID-19, no different sentence would properly follow.”

24 This passage is consistent with Borg v R; Gray v R [2020] NSWCCA 67 at [46] to [48].
25 As present circumstances clearly demonstrate, the impact of the COVID-19 pandemic on prisoners is far from over. It can be accepted that sentencing judges are entitled to consider those impacts and the potential imposition of restrictions in the future. However, consistent with long established principle, Cabezuela confirms that it is not a basis for intervention by this Court with a sentence where, after the time of sentence, the offender’s conditions of custody have been rendered more onerous because of the imposition of restrictions by the prison authorities in response to the threat posed by a pandemic.”

These principles have recently been affirmed: Futcher v R [2025] NSWCCA 102 at [89]-[90] (Harrison CJ at CL, Garling and Yehia JJ agreeing).
I would refuse leave to argue ground 16 and dismiss it.

Ground 17 – Ms Crowhurst suffers ongoing neglect and mistreatment in the prison medical system and was held in isolation for the first two months of her sentence.

Again, this ground (which is solely referable to Ms Crowhurst) relies on events which post-date the sentence.
Ms Crowhurst seeks to rely on fresh evidence relating to her medical conditions and the impact of these on her custodial conditions. The Crown has referred to authorities which state that events postdating the imposition of a sentence cannot be taken into account to demonstrate error in the exercise of the sentencing discretions: Richardson v R [2021] NSWCCA 304 (Johnson J, Lonergan and Dhanji JJ agreeing). At [124]-[126], his Honour said:

“124 In Betts v The Queen, French CJ, Kiefel, Bell, Gageler and Gordon JJ said at [10] (emphasis added and footnotes omitted):
“Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal’s power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge’s reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence. Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence. Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence. None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice.”

125 It is the last-mentioned principle which the Applicant seeks to invoke in the present case.
126 This Court has been cautious in its approach to receipt of evidence concerning post-sentence events with it being said that, absent the demonstration of error leading to resentencing under s.6(3) Criminal Appeal Act 1912, rare or exceptional circumstances must exist before the evidence is received and acted upon. These statements reflect the fact that the Court of Criminal Appeal is a court of error, with post-sentence events being a matter for the Executive Government: R v Munday (1981) 2 NSWLR 177 at 178.”

In Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [110]-[112] Simpson J (Davies J and Grove AJ agreeing) said:

“110 A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed. In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177.
111 The issue has arisen, and the principle I have stated has been applied, in a number of cases concerning applicants who have, post sentencing, provided assistance to prosecution authorities: Scullion v R (NSWCCA, 15 July 1992, unreported); JM v R [2008] NSWCCA 254; R v Willard [2001] NSWCCA 6; 120 A Crim R 450; Munday (supra).
112 The same principle would, no doubt, be held to apply where additional evidence of a medical nature is sought to be adduced on appeal, but where the relevant condition did not exist at the time of sentencing.”

I do not consider that there is any basis established for the admission of the fresh evidence relating to Ms Crowhurst’s medical conditions and the treatment, or absence of treatment, of those conditions since the sentence was imposed. I would not admit the affidavit of Ms Crowhurst dated 16 January 2025. That fresh material cannot be used to demonstrate error in the sentence imposed. The affidavit was provisionally read at the hearing of the appeal. If the appeal had been allowed and the Court moved to resentence, the material may have been admissible going to the onerous nature of custody. However, that is not the position as I propose that Ms Crowhurst’s appeal against the sentence will not be allowed.
There was medical evidence relating to Ms Crowhurst before the sentencing judge. His Honour took the matters known to him and relevant at the time into account as part of the exercise of his sentencing discretion.
I do not accept that the custodial conditions faced by Ms Crowhurst are tantamount to torture. The ICCPR has not been incorporated by statute into domestic law and therefore does not vest the applicants with any additional rights under Australian law: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20 (Mason CJ and Deane J at 286-287, Gaudron J at 304, McHugh J at 315). This aspect of ground 17 is baseless.
I would refuse leave to argue ground 17.

Orders

The orders I would propose are:

In respect to each appeal:

Grant leave pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW);

Refuse leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) with respect to grounds 12,13,14 and 16 and dismiss those grounds;

Grant leave pursuant to s 5(1)(c) with respect to ground 15 but dismiss the appeal.

In respect to Ms Crowhurst’s appeal I would refuse leave pursuant to s 5(1)(c) with respect to ground 17 and dismiss that ground.

**********

Amendments

30 September 2025 - Coversheet: correction of starting paragraph numbers of judgments.

At [105] correction of name from “Patrick” to “Peter”.

Decision last updated: 30 September 2025

Medium Neutral Citation:	Paul Crowhurst v R; Narelle Crowhurst v R (No 2) [2025] NSWCCA 146
Hearing dates:	4 April 2025
Date of orders:	17 September 2025
Decision date:	17 September 2025
Before:	McHugh JA at [1]; McNaughton J at [189]; Coleman J at [193]
Decision:	In relation to the conviction appeals: (1) In respect of Mr Crowhurst’s appeal against conviction: (a) Grant leave pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). (b) Grant leave to the extent necessary pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) and pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) with respect to grounds 2, 6, 9, 10 and 11. (c) Otherwise refuse leave. (d) Dismiss the appeal. (2) In respect to Ms Crowhurst’s appeal against conviction: (a) Grant leave pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). (b) Grant leave to the extent necessary pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) and pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) with respect to grounds 2, 6, 8, 9, 10 and 11. (c) Otherwise refuse leave. (d) Dismiss the appeal. In relation to the sentence appeals: (1) In respect to each appeal: (a) Grant leave pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW); (b) Refuse leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) with respect to grounds 12,13,14 and 16 and dismiss those grounds; (c) Grant leave pursuant to s 5(1)(c) with respect to ground 15 but dismiss the appeal. (2) In respect to Ms Crowhurst’s appeal refuse leave pursuant to s 5(1)(c) with respect to ground 17 and dismiss that ground.
Catchwords:	CRIME — Appeals — Appeal against conviction — Crimes Act 1900 (NSW), s 66EA —International Covenant on Civil and Political Rights not enacted in domestic law CRIME — Appeals — Appeal against conviction — Standard of proof under s 66EA CRIME — Appeals — Appeal against conviction — Whether applicants suffered forensic disadvantage — Whether police officer failed to properly investigate case — Whether Office of the Director of Public Prosecutions improperly delayed charging applicants — Whether sentencing judge’s findings inconsistent with verdicts of guilty CRIME — Appeals — Appeal against conviction — Irregularity at trial — Where Crown Prosecutor’s disclosure incomplete — Whether irregularity material CRIME — Appeals — Appeal against conviction — Where inappropriate remarks in Crown Prosecutor’s address — Where trial judge refused application to discharge jury — Whether prejudice occasioned by remarks material CRIME — Appeals — Appeals against sentence — Unlawful sexual relationship with child — Six grounds of appeal — Whether the trial judge was required to ask the jury which acts they found proved — Whether trial judge was obligated to sentence the applicants on a basis most favourable to them — Whether trial judge added extra charges — Manifest excess — Applicability of the ICCPR under Australian law — Reliance on events which post-date sentence — Appeal brought out of time — Extension granted — Leave granted on one ground — Appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW) (as at 1 January 1989), ss 61A, 61E, 66C Crimes Act 1900 (NSW) (as at 17 March 1991), ss 61H, 61M, 66C Crimes Act 1900 (NSW), s 66EA Criminal Appeal Act 1912 (NSW), ss 5, 6, 10(1)(b) Criminal Law Consolidation Act 1935 (SA), s 50 Evidence Act 1995 (NSW), ss 38, 165B Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.5(5), 4.15
Cases Cited:	Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162 Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 Conway v R [2023] NSWCCA 265 Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13 Crockford v R [2022] NSWCCA 115; (2022) 100 MVR 206 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Dawiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62; (2011) 209 A Crim R 424 Dimitriou v R [2025] NSWCCA 18 Fuller v R [2022] NSWCCA 203 Futcher v R [2025] NSWCCA 102 Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33 He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 Hijazi v R [2020] NSWCCA 97 House v The King (1936) 55 CLR 499; [1936] HCA 40 Ibrahim v R [2014] NSWCCA 160 Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248 JC v R [2021] NSWCCA 254 Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 Kibby v R [2024] NSWCCA 207 KNP v R [2006] NSWCCA 213 Massaquoi v R [2024] NSWCCA 125 MDP v The King [2025] HCA 24; (2025) 99 ALJR 969 Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20 MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCA 180 Moore (a pseudonym) v R [2024] HCA 30; (2024) 98 ALJR 1119 Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44 Owen v R [2022] NSWCCA 214 Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 Paul Crowhurst v R; Narelle Crowhurst v R [2025] NSWCCA 57 Polyukhovich v The Commonwealth (1991) 172 CLR 501; [1991] HCA 32 R v Basha (1989) 39 A Crim R 337 R v Edwards [2009] HCA 20; (2009) 83 ALJR 717 R v Isaacs (1997) 41 NSWLR 374 R v Livermore (2006) 67 NSWLR 659; [2006] NSWCCA 334 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290: R v RB [2022] NSWCCA 142 Rassi v R [2023] NSWCCA 119 Richardson v R [2021] NSWCCA 304 Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44 SA v R [2024] NSWCCA 50 SB v R [2020] NSWCCA 207 Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35 The King v Kidman (1915) 20 CLR 425; [1915] HCA 58 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Toller v R [2021] NSWCCA 204 Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Woods v Industrial Relations Secretary on behalf of the Office of the Director of Public Prosecutions [2021] NSWIRComm 1054 Xerri v The King (2024) 278 CLR 276; [2024] HCA 5 Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 Zreika v R [ 2012] NSWCCA 44
Texts Cited:	International Covenant on Civil and Political Rights, Arts 7, 15
Category:	Principal judgment
Parties:	Proceedings 2018/180076 Paul Crowhurst (Applicant) Rex (Respondent) Proceedings 2018/180071 Narelle Crowhurst (Applicant) Rex (Respondent)
Representation:	Counsel: In person (Applicants) T Abdulhak (Respondent) Solicitors: In person (Applicants) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2018/180071 (NC) 2018/180076 (PC)
Publication restriction:	Statutory non-publication order pursuant to s 578A of the Crimes Act 1900 (NSW) in relation to the identity of the complainant.
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 17 July 2020 21 February 2020 Before: McLennan SC DCJ File Number(s): 2018/180071 (NC) 2018/180076 (PC)