Paul Crowhurst v R; Narelle Crowhurst v R (No 2)

1. [1]

   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).

2. [2]

   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.

3. [3]

   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.

4. [4]

   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

1. [5]

   Section 66EA of the Crimes Act relevantly provides:

2. [6]

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

3. [7]

   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:

4. [8]

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

5. [9]

   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.

6. [10]

   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:

7. [11]

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

The Crown case at trial

1. [12]

   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.

2. [13]

   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.

3. [14]

   The Crown relied on evidence of the following matters.

4. [15]

   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.

5. [16]

   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.

6. [17]

   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.

7. [18]

   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.

8. [19]

   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.

9. [20]

   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.

10. [21]

    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.

11. [22]

    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.

12. [23]

    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.

13. [24]

    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.

14. [25]

    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.

15. [26]

    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.

16. [27]

    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.

17. [28]

    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

1. [29]

   Both applicants gave evidence at the trial. They denied ever engaging in any sexual acts with the complainant.

2. [30]

   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.

3. [31]

   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.

4. [32]

   Ms Crowhurst also led evidence from several witnesses of her good character.

The appeal

1. [33]

   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) (Criminal Appeal Act).

2. [34]

   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.

3. [35]

   On 15 November 2024, both applicants filed a handwritten, non-numbered, document entitled “Summary of Grounds of Appeal in no particular order”.

4. [36]

   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).

5. [37]

   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.

6. [38]

   The summarised grounds in relation to the applicants’ convictions are as follows.

   1. (1)

      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.”

   2. (2)

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

   3. (3)

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

   4. (4)

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

   5. (5)

      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.’”

   6. (6)

      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.”

   7. (7)

      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.”

   8. (8)

      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.”

   9. (9)

      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.”

   10. (10)

       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.’”

   11. (11)

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

7. [39]

   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

1. [40]

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

   1. (1)

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

   2. (2)

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

   3. (3)

      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.

   4. (4)

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

   5. (5)

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

2. [41]

   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).

3. [42]

   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

1. [43]

   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.

2. [44]

   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.

3. [45]

   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].

4. [46]

   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.)

5. [47]

   Ground 1, which purports to raise a question of law, should be dismissed.

Grounds 2, 9, 10 and 11

1. [48]

   It is convenient to deal with these grounds together as they overlap.

2. [49]

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

3. [50]

   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.

4. [51]

   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”.

5. [52]

   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:

6. [53]

   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:

7. [54]

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

8. [55]

   The first sentence correctly identified the standard of proof. The second sentence was required by s 66EA(5)(c) and (6).

9. [56]

   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.”

10. [57]

    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:

11. [58]

    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.

12. [59]

    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.

13. [60]

    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.

14. [61]

    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.’”

15. [62]

    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.

16. [63]

    The first (Excerpts from Reference Documents at [15]) is the italicised part of the following exchange:

17. [64]

    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.

18. [65]

    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:

19. [66]

    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.

20. [67]

    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.

21. [68]

    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.

22. [69]

    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.”

23. [70]

    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.

24. [71]

    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].

25. [72]

    None of Grounds 2, 9, 10 or 11 identifies any viable ground on which the convictions may be challenged.

26. [73]

    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

1. [74]

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

2. [75]

   There are several strands to the applicants’ argument.

3. [76]

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

4. [77]

   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:

5. [78]

   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.

   1. (1)

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

   2. (2)

      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:

   3. (3)

      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).

   4. (4)

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

6. [79]

   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).

7. [80]

   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.

8. [81]

   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.

9. [82]

   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].

10. [83]

    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.

11. [84]

    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.

12. [85]

    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.

13. [86]

    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.

    1. (1)

       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.

    2. (2)

       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).

14. [87]

    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).

15. [88]

    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

1. [89]

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

2. [90]

   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].

3. [91]

   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.

4. [92]

   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])

5. [93]

   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.

6. [94]

   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.”

7. [95]

   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).

8. [96]

   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).

9. [97]

   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.

10. [98]

    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

1. [99]

   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.’”

2. [100]

   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 30th November 2018. The first charge appeared against us on 1st 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.”

3. [101]

   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.

4. [102]

   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.

5. [103]

   Moreover, the delays now relied upon were not raised at trial. Leave to appeal should be refused with respect to this ground.

Ground 6

1. [104]

   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.”

2. [105]

   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.

3. [106]

   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.

   1. (1)

      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.

   2. (2)

      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.

   3. (3)

      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):

   4. (4)

      The IRC Decision records at [4] that on the morning of 6 February 2020, Ms Dowling informed the Crown Prosecutor that the complainant no longer wished to communicate with Mr Woods. The Crown Prosecutor later confirmed that he became aware of the incident on the morning of 6 February: Tcpt, 19 February 2020, 789.7-8.

   5. (5)

      On 6 February 2020, at the commencement of the second day of the trial and in the absence of the jury, the Crown Prosecutor sought and was granted an adjournment on the basis that he needed to make a disclosure to the applicants’ counsel: Tcpt, 6 February 2020, 78.22-79.12. The contents of the disclosure (which was not communicated to the Court until 19 February 2020; see below) were recorded in an email sent by the Crown Prosecutor to counsel for the applicants (among others) on the afternoon of Friday 7 February 2020. (That email was also annexed to Mr Crowhurst’s affidavit of 27 November 2024, and was again admitted on the appeal on a provisional basis.) The email stated:

   6. (6)

      According to the 7 February email, the specific disclosure made to counsel for the applicants on the morning of 6 February 2020 was in relation to Mr Woods’ having “hinted” to the complainant in relation to the allegation of fellatio that formed count 6 with respect to Mr Crowhurst, but not in relation to the allegation of digital penetration that formed count 13 with respect to Ms Crowhurst.

   7. (7)

      After the adjournment on the morning of 6 February, the Crown Prosecutor informed the trial judge that he had disclosed a matter to counsel for the applicants, and indicated that he would have a different instructing solicitor from the previous day. Both defence counsel confirmed that they did not have any application to make as a result of the Crown disclosure, on the basis that the Crown was proposing a remedy for the issue that had been the subject of the disclosure: Tcpt, 6 February 2020, 79.23-80.5.

   8. (8)

      The Crown Prosecutor then indicated that the Crown would take no further proceedings on count 6 and count 13 on the indictment. The Crown Prosecutor said he was not going “any further into that incident” (i.e., the Suspenders Incident), and was discontinuing “the two other charges relating to that incident” (i.e., count 6 against Mr Crowhurst and count 13 against Ms Crowhurst): Tcpt, 6 February 2020, 80.9-37. That is to say, in relation to the Suspenders Incident, the Crown was pressing alternative counts 7 and 12 (of which the complainant had already given evidence on 5 February before the conference with Mr Woods), but abandoning counts 6 and 13 and not leading any evidence of them.

   9. (9)

      As to the s 66EA charges, the Crown Prosecutor confirmed that in respect of the matters of fact that had been alleged with respect to counts 6 (fellatio performed on Mr Crowhurst) and 13 (digital penetration by Ms Crowhurst), there would be no evidence of those matters on the particular occasion of the Suspenders Incident for the jury to take into account as particulars of counts 1 and 9 (being the s 66EA offences): Tcpt, 6 February 2020, 81.10-25. The trial judge confirmed that the acts the subject of counts 6 and 13 were “effectively gone for all purposes” (at 81.27-29).

   10. (10)

       There was then discussion about whether in the circumstances the trial judge should give a Markuleski-style direction (referring to R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290): Tcpt, 6 February 2020, 82.6-83.3. As will be seen, such a direction was ultimately given, and counsel made submissions to the jury about the significance of the withdrawal of the two counts in addresses.

   11. (11)

       When the jury was brought back, before the complainant resumed her evidence, it was informed by the Crown Prosecutor and directed by the trial judge as follows:

   12. (12)

       The final matter relevant to the disclosure made at trial is that (in circumstances explained more fully below), on 19 February 2020, prior to the commencement of the summing up, the following exchange took place concerning what had occurred on 5 February.

   13. (13)

       The Crown Prosecutor’s statement made on 19 February, “it seemed to be communication about oral sex,” is consistent with what he had said in his 7 February email about the disclosure he had made on 6 February. That is, that the specific disclosure he made to counsel for the applicants on the morning of 6 February 2020 was only in relation to Mr Woods’ having “hinted” to the complainant in relation to the count 6 allegation of fellatio. However, when the matter was ventilated on 19 February, the Crown Prosecutor referred more broadly to “sexual acts” in the plural, and to some “uncertainty about what sexual acts”. The trial judge appears to have proceeded on the footing that Mr Woods’ communication with the complainant may have extended to any “sexual acts” “in respect of which [the complainant] hadn’t come up to proof”. That included the count 13 allegation of digital penetration by Ms Crowhurst, about which the complainant had given no evidence on 5 February. Neither applicant’s counsel took up the issue further.

4. [107]

   The applicants submit that the IRC Decision confirms that Mr Woods’ communication amounted to “misconduct and coaching”: Fair Trial submissions at [13]. This appears to be a reference to [37] and [44] of the IRC Decision, where it was found that “Mr Woods’ gestures could have amounted to coaching the complainant,” and that his conduct constituted misconduct (at least in an employment context).

5. [108]

   The conclusions reached by the Commissioner are irrelevant for present purposes. The complaint of inadequate disclosure depends on what Mr Woods did, and what was disclosed about it. For the same reason, whether or not complaints may have been made to the Legal Services Commissioner or to professional bodies such as the Law Society or the Bar Association (Fair Trial submissions at [13]-[14], [19]-[22]) is not to the point.

6. [109]

   In any event, the applicants’ submission that the disclosure by the Crown Prosecutor that Mr Woods engaged in conduct that could be construed as “a hint” to the complainant is different from the proposition that he “coached” the complainant is without merit. The substance of the disclosure made by the Crown Prosecutor was that his instructing solicitor had indicated to the complainant how she should answer the questions being put to her. It was made clear that the conduct was sufficiently serious that the Crown Prosecutor would not examine the complainant further in relation to the Suspenders Incident, and that there would be no further proceedings on the two counts of which the complainant had not given evidence. To the extent that the complaint is that the disclosure was inadequate because it was not couched in terms of “coaching” or “misconduct”, it is not made out. Save for the important absence of reference to digital penetration (which is addressed below), the substance of the Crown Prosecutor’s disclosure was relevantly consistent with the description of Mr Woods’ conduct in the IRC Decision.

7. [110]

   A related submission made by the applicants should be disposed of immediately. They submit that “[t]here is reason to believe that [Mr Woods] may have been coaching the complainant all along, as after his dismissal the complainant seemed to become vague with her evidence”: Fair Trial submissions at [15]. There is no evidentiary basis for this allegation. It is inconsistent with what the Crown Prosecutor confirmed to counsel for the applicants in his 7 February email (“to my knowledge, Mr Woods has not had any other conferences with the complainant about substantive trial matters in my absence”). It is also at least arguably inconsistent with the complainant’s own reaction to the incident as recorded in the IRC Decision. The submission must be rejected.

8. [111]

   The important issue identified above is that, on the footing that this Court may have regard to the material drawn from the file note in the IRC Decision and to the 7 February 2020 email, there is a potentially significant difference between the disclosure that was made on 6 February 2020 (“hinting” in relation to fellatio) and what had in fact occurred on 5 February 2020 (“hinting” in relation both to fellatio and digital penetration). It appears that on 6 February the Crown Prosecutor’s own understanding of his instructing solicitor’s conduct was limited to the former. But (according to the IRC Decision) it was known within the ODPP that Mr Woods’ conduct extended to the latter. That being so, “the prosecution” had the relevant knowledge: Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 at [29].

9. [112]

   The Crown submits that the IRC Decision “does not demonstrate that the disclosure by the Crown Prosecutor was incomplete”. Focussing on the disclosure made on 6 February (as recorded in the Crown Prosecutor’s email of 7 February), it may be accepted that it was not incomplete by reference to the Crown Prosecutor’s own understanding at the time. But the disclosure made on 6 February was incomplete by reference to the matters known to the prosecution as a whole.

10. [113]

    However, as to the exchange between the Crown Prosecutor and the trial judge on 19 February 2020, on one reading of what was said, the Crown Prosecutor, the trial judge and (implicitly, as they did not take up the issue further) the applicants’ counsel all proceeded on the footing that Mr Woods’ communication to the complainant may have extended to all the sexual acts during the Suspenders Incident in respect of which the complainant had not come up to proof — that is, including digital penetration by Ms Crowhurst. On that reading, it might be difficult for the applicants to complain on appeal.

11. [114]

    However, it is preferable to resolve this ground of appeal making the assumption in the applicants’ favour that the prosecution failed specifically to disclose that Mr Woods had hinted to the complainant that she should give evidence of digital penetration by Ms Crowhurst in the course of the Suspenders Incident, and that that was an irregularity.

12. [115]

    In Brawn at [8], the High Court recently and unanimously confirmed that there is a materiality threshold that must be overcome before it can be said that an error or irregularity that has occurred in, or in relation to, a criminal trial amounts to “a miscarriage of justice” within the third limb (at [4]-[5]) of the common form criminal appeal provision. The Court held at [3] and [9]-[10] (footnotes omitted):

13. [116]

    It is not suggested that the irregularity here was “fundamental” in the sense explained in the authorities to which the Court referred at [9]. That being so, the test identified at [10] of Brawn applies (noting the three matters excluded from that test at [13]-[15], to which these reasons will return below).

14. [117]

    Here, the Crown discontinued the proceedings in relation to both alternative counts 6 (fellatio) and 13 (digital penetration), and abandoned the acts the subject of those counts as particulars of counts 1 and 9. Since there was no verdict in relation to counts 6 or 13 (which were originally alternative counts and then abandoned), there cannot have been any miscarriage of justice in relation to those counts. The question is whether there was nevertheless a material irregularity amounting to a miscarriage of justice, in the sense that the failure to disclose that Mr Woods had referred to digital penetration (in addition to the disclosure that he had referred to fellatio) could realistically have affected the reasoning of the jury to its verdicts on counts 1 and 9. There is no reason to think that it could have.

15. [118]

    First, the applicants have not identified how the failure to make the additional disclosure (about “hinting” in relation to digital penetration by Ms Crowhurst in the course of the Suspenders Incident) could realistically have affected the reasoning of the jury with respect to counts 1 and 9. The failure to make that disclosure was an irregularity, but it was not one that occurred before the jury. In order to determine whether the irregularity could realistically have affected the reasoning of the jury, it is necessary to identify something that could have happened differently before the jury if that disclosure had been made.

16. [119]

    If that disclosure had been made, the conservative Crown “remedy” (to adopt the word used by counsel for Ms Crowhurst at Tcpt, 6 February 2020, 79.50) would have been not to lead evidence of digital penetration on that occasion and not to proceed further in respect of the count to which it was relevant, count 13. But the Crown took those steps in any event, as the remedy for what had been disclosed in relation to fellatio and count 6. The applicants have not identified what more could have been done, or what could have occurred differently before the jury that realistically could have affected the reasoning of the jury to the verdict of guilty. For example, in Brawn the failure to disclose concerned information that might have provided a realistic basis for the accused to identify the person described in that case as “X” as a possible perpetrator: at [40]. By contrast, this is not a case where “the appellant was denied the opportunity to conduct a case that was different from the case that was run, and that difference could realistically have affected the reasoning of the jury to the verdict of guilty”: see at [42].

17. [120]

    Secondly, the concern about Mr Woods’ communication with the complainant was that it might have tainted her evidence in relation to the two specific subject matters: fellatio and digital penetration in the course of the Suspenders Incident. But because the Crown decided not to lead further evidence about the Suspenders Incident, no such evidence was given. It was not suggested that what had been disclosed in relation to Mr Woods’ conduct in “hinting” about fellatio could taint the complainant’s evidence in relation to other matters, having nothing to do with the Suspenders Incident. Neither applicant’s counsel cross-examined the complainant on that basis. There is no reason to think that the position could realistically have been any different if Mr Woods’ conduct in “hinting” about digital penetration had also been disclosed. As to the complainant’s failure to come up to proof on 5 February (which in any event concerned both fellatio and digital penetration), Mr Crowhurst’s counsel said, “I wouldn’t go back and make an issue of cross-examination as to credibility. I wouldn’t raise the prior inconsistent statement.” (Tcpt, 6 February 2020, 82.24-26.) There were obviously sound forensic reasons for taking that stance, and there is no reason to think it could realistically have been different if the additional disclosure had been made.

18. [121]

    Thirdly, as set out above, the trial judge directed the jury on 6 February 2020 that “those particulars and the counts upon which they were based are now irrelevant for all purposes in the trial.” There is no reason to think that that direction could have been any different if the additional disclosure had been made.

19. [122]

    Fourthly, counsel for Mr Crowhurst took advantage of what had occurred in relation to counts 6 and 13 in his address to the jury as follows:

20. [123]

    It might be noted that the Crown Prosecutor protested about that statement (Tcpt, 18 February 2020, 773.41-774.18; Tcpt, 19 February 2020, 787.29-792.29). It was in this context that the Crown Prosecutor came to disclose to the trial judge the circumstances in which counts 6 and 13 had been withdrawn. He argued that Mr Crowhurst’s counsel’s closing address “misrepresented the situation” and “cast doubt on the complainant’s credibility which was unjustified” (at 791.8). The trial judge declined (at 793.12-15) the Crown Prosecutor’s request “to say something to correct the way it was put by [Counsel for Mr Crowhurst]” (at 792.33). Against that background, there is no reason to think that counsel could realistically have addressed any differently if the additional disclosure had been made. In particular, the “specific details” on which the Crown had opened, about which counsel submitted the complainant had “said nothing”, in any event included digital penetration by Ms Crowhurst in the course of the Suspenders Incident.

21. [124]

    Fifthly, in the Summing Up, following a form of Markuleski direction, the trial judge gave a further specific direction to the jury with respect to the significance of the Crown’s having discontinued proceedings on counts 6 and 13 as follows.

22. [125]

    That direction expressly referred to both fellatio and digital penetration. The applicants’ counsel had sought a direction on this topic: MFI 16 at [6], MFI 17 at [6]. The trial judge had earlier told counsel what he was proposing to say, which he modified as a result of submissions: Tcpt, 17 February 2020, 690.26-691.5; Tcpt, 19 February 2020, 787.42-788.2, 793.1-8, 793.27. Neither applicant’s counsel objected to the direction in its final form. Specifically as to the direction, Mr Crowhurst’s counsel stated that he was content with the direction the trial judge was going to give: Tcpt, 19 February 2020, 794.20-23. (Although counsel also indicated that the trial judge “should go further”, he did not identify in what respect: at 794.35.) Notably, that occurred after the trial judge’s statement at 788.50: “Well, would’ve been the ones in respect of which she hadn’t come up to proof”. There is no reason to think that the direction given in the summing up could have been any different if the additional disclosure had been made.

23. [126]

    In those circumstances, it cannot be said that the Crown’s failure to disclose that Mr Woods had “hinted” in relation to digital penetration by Ms Crowhurst during the Suspenders Incident was material in the sense that it could realistically have affected the reasoning of the jury to its verdicts with respect to counts 1 and 9.

24. [127]

    Something should be said as to the three matters noted in Brawn at [13]-[15].

25. [128]

    The first is that the Court in Brawn stated that it was not addressing what is sufficient to establish a miscarriage of justice in cases involving “fresh” or “new” evidence. It is clear from the two cases cited at [13], Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 and Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44, that the Court was referring to situations where there is a significant possibility that the jury acting reasonably might have acquitted the appellant if the absent evidence had “been available to it” (Rodi at [28]). This is not a case in that category. It is true that the file note referred to in the IRC Decision recording what Mr Woods communicated to the complainant is “fresh” evidence, in the sense that it was not available to the applicants at the time of the trial. But it is not suggested that the file note is evidence that could have been put before the jury, or that there is a significant possibility that the jury acting reasonably might have acquitted if that evidence had been available to it. Instead, the file note is relied on as evidence that an irregularity took place of which the applicants were unaware, namely, the failure to disclose Mr Woods’ “hinting” about digital penetration.

26. [129]

    The second category of case which the Court said it was not addressing in Brawn was where there is an alleged miscarriage of justice that does not involve an alleged error or irregularity: at [14]. The cases cited — TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, Nudd v The Queen [2006] HCA 13; (2006) 80 ALJR 614 and Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13 — were concerned with miscarriages said to arise out of defence counsel’s conduct of the trial or out of incorrect advice. Again, that is not this case.

27. [130]

    Thirdly, the Court noted at [15] that it was not addressing whether or not establishing an error or irregularity that is material in the sense their Honours had explained would be sufficient to establish a miscarriage of justice in all circumstances, including where the error or irregularity was the product of or contributed to by the accused as a result of rational forensic decisions of their trial counsel. Again, that is not this case. To the extent that there was an irregularity, it was non-disclosure by the Crown. Nevertheless, the forensic choices of the applicants’ counsel when apprised of Mr Woods’ conduct relevant to count 6, and when the matter was discussed again on 19 February 2020, provide some context in which to determine whether the irregularity in failing to disclose Mr Woods’ conduct relevant to count 13 could realistically have affected the reasoning of the jury to the verdicts of guilty on counts 1 and 9 in the trial that occurred.

28. [131]

    There remains the question what use, if any, may be made in this Court of the IRC Decision and the file note upon which it draws, and of the Crown Prosecutor’s 7 February 2020 email.

29. [132]

    The IRC Decision and the file note to which it refers were “fresh”, in the sense that they were not available to the applicants at trial, and could not have been discovered by the applicants through exercising due diligence. The applicants had no reason to know that the file note existed; they were dependent on disclosure by the Crown of relevant matters.

30. [133]

    The Crown nevertheless submits that in addition to the question whether the evidence is “fresh” (as opposed to “new”), there are two further questions that need to be considered where a conviction is sought to be quashed and a new trial ordered on the basis of fresh evidence, citing Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 at [433]. The first is whether the evidence is credible or capable of belief. The second is whether there was a significant possibility that the jury acting reasonably would have acquitted the appellant. For the reasons explained above, those questions are relevant where the argument is that the fresh evidence might have affected the outcome if made available to the jury. That is different from the question that arises in this case, which is whether the fresh evidence establishes an irregularity. The two further questions identified in Xie are not relevant to the use that may be made of the fresh evidence in a case such as the present.

31. [134]

    The email of 7 February 2020 is not on its face “fresh”; the applicants’ legal advisers can be taken to have received it at the time it was sent. But its significance was not apparent in the absence of the file note referred to in the IRC Decision. The significance of the 7 February email is that it made clear the limited scope of the disclosure that was made, when compared to what the IRC Decision indicated had in fact occurred. To that extent the use to which the 7 February email might be put is bound up with the use of the IRC Decision and the file note; it is in that sense “fresh”.

32. [135]

    The applicants are self-represented, and not to be expected to be familiar with rules of practice and procedure or evidence. The Crown properly did not take any evidentiary objections to the IRC Decision, to the account of Mr Woods’ conduct drawn from the file note within it, or to the 7 February 2020 email, if the factual matters disclosed by that material were otherwise properly to be taken into account in the disposition of this ground of appeal. For the reasons given above, those matters are properly to be taken into account in order for this ground of appeal to be addressed on its merits. On its merits, the ground does not succeed.

33. [136]

    In the result, the applicants have established an irregularity, but not a material one amounting to a miscarriage of justice. Leave is undoubtedly required. The ground was arguable. Leave should be granted, but Ground 6 should be dismissed.

Ground 7

1. [137]

   Ground 7 is: “The trial judge’s findings on sentence indicate that his Honour was not satisfied beyond a 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.”

2. [138]

   The applicants’ submissions have three strands: see Submissions against conviction at [35]. First, that the trial judge, “in determining his facts for sentencing, was not satisfied beyond a reasonable doubt of any of the alleged offences in Murwillumbah”. Secondly, they appear to allude to the fact that the complainant gave evidence in relation to events when the applicants were living at Murwillumbah after “the dismissal of the crown solicitor … for misconduct and coaching the complainant.” Thirdly, they go on to submit that “consideration should be given to whether that factual determination is inconsistent with the finding of guilty in respect of the primary charge in the circumstances where the Crown relied largely on the complainants’ [sic] evidence.”

3. [139]

   As to the first strand, this ground is misconceived at the threshold. It does not identify an error or irregularity going to the convictions at the trial. In any event, as will shortly be seen, the submission seriously misstates what his Honour said in his remarks on sentence. As to the second strand, the allegation of “coaching” has been addressed above. As to the third strand, there is no inconsistency between the finding of guilt in respect of counts 1 and 9 and the remarks on sentence.

4. [140]

   The applicants’ submissions in support of Ground 7 appear to be referring to what his Honour said in his remarks on sentence as follows:

5. [141]

   It is clear from those passages that his Honour was referring to a distinct requirement of the s 66EA offences as then understood, namely, that the accused must have “maintain[ed]” an unlawful sexual relationship with a child. That approach was in favour of the applicants. (As noted above, see now MK at [91]-[93].) But it is important to observe that his Honour’s doubt was as to whether the applicants “maintained” the unlawful sexual relationships in respect of the period when they were living at Murwillumbah, not the earlier period when they were living at Lismore. His Honour noted that “[t]he evidence of the complainant concerning events at Murwillumbah is generally speaking lacking in the same degree of clarity as was the evidence concerning events at Lismore.” (Sentencing remarks at 15.) Even so, in respect of the period when the applicants were living at Murwillumbah, his Honour was satisfied that a sexual act (fellatio) took place between Mr Crowhurst and the complainant during a trip to Brisbane when the complainant was 15 years old: Sentencing remarks at 13, 17. As his Honour indicated in the passage quoted above, he was satisfied beyond reasonable doubt that there were “isolated acts of sexual activity at Murwillumbah”. But his Honour was not satisfied that the unlawful sexual relationships were “maintained” in that period, given that there was a range of possibilities on the evidence, including “a period of about eight months of discontinuity” and “a complete absence of evidence concerning any contact between the parties either side of the visits the complainant said she made”: Sentencing remarks at 16-17.

6. [142]

   By contrast, as to the period when the applicants were living at Lismore, his Honour was satisfied beyond reasonable doubt of a number of discrete sexual acts as particularised in relation to counts 1 and 9: Sentencing remarks at 5-13. His Honour also made the following more general finding, where he accepted beyond reasonable doubt that the applicants engaged in regular unlawful sexual acts with the complainant during the period at Lismore:

7. [143]

   Returning to the first strand in the applicants’ argument, it is incorrect to say that his Honour was not satisfied beyond reasonable doubt “of any of the alleged offences in Murwillumbah”. His Honour’s lack of satisfaction related relevantly to the “maintaining” aspect in the Murwillumbah period. But that period was not essential to the Crown case with respect to the s 66EA offences.

8. [144]

   As to the third strand, the sentencing judge’s findings concerning the period when the applicants were living at Murwillumbah are wholly consistent with the guilty verdicts on counts 1 and 9. Contrary to what the applicants imply by their submission that “the Crown relied largely on the complainants’ [sic] evidence”, his Honour accepted the complainant’s honesty and fundamental reliability in respect of her evidence concerning the events in the period at Lismore.

9. [145]

   This ground requires a grant of leave. The ground lacks merit. Leave to appeal should be refused.

Ground 8

1. [146]

   This ground relates to Ms Crowhurst’s conviction appeal only.

2. [147]

   Ground 8 is: “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.”

3. [148]

   This ground of appeal is the subject of [17] and [18] of the Fair Trial submissions. The applicants refer to a submission made by the Crown Prosecutor in his address to the jury, to the effect that Ms Crowhurst’s good character “could be used as a shield to commit such crimes as we were accused of and stated that high profile people of good character had been found guilty of such crimes.” They complain that the trial judge rejected Ms Crowhurst’s counsel’s application for discharge of the jury, and gave directions to the jury to ignore the comments. “However, his comment to the jury that we were not retrying Rolf Harris did not assist the jury in ignoring [the Crown Prosecutor’s] comments”. In the applicants’ two Grounds documents they complain that the Crown Prosecutor had caused prejudice against Ms Crowhurst “by attacking her good character” (see also at [19] of the Fair Trial submissions).

4. [149]

   The Crown Prosecutor's statement of which Ms Crowhurst complains was made in his closing address, when addressing the topic of the witnesses who gave evidence of Ms Crowhurst’s good character. He said that many of the witnesses called to give evidence of Ms Crowhurst’s good character had not met her until after she moved to Brisbane, which was after the relevant time. He then said:

5. [150]

   Immediately after the conclusion of the Crown Prosecutor’s closing address, which was about 3½ pages of transcript later, the following exchange occurred between the trial judge and the Crown Prosecutor in the absence of the jury.

6. [151]

   His Honour invited counsel to address him on the issue at 2 o’clock. Very shortly afterwards, the Court adjourned for lunch. At the resumption, counsel for Mr Crowhurst submitted that “the jury need to be told now that the position that your Honour made very clear at the start of the trial is that this is a case to be determined by reference to the evidence in this case, not by allusions to other cases … which have no bearing or relevance here …”: Tcpt, 18 February 2020, 752.32-39.

7. [152]

   Counsel for Ms Crowhurst went further, making an application for discharge of the jury on the bases of the Crown Prosecutor’s reference to the Royal Commission and his comment about high profile cases: Tcpt, 18 February 2020, 754.8-756.32. Specifically as to the Crown Prosecutor’s reference to high profile cases, the following exchange took place.

8. [153]

   It might be noted that the trial judge had twice referred to Rolf Harris in the absence of the jury, including expressly saying that he was proposing to tell the jury “to completely ignore those submissions … and that we’re not trying Rolf Harris”. No one at the Bar table suggested that his Honour should not do so.

9. [154]

   The jury was then brought back. The trial judge gave the following direction in relation to the Crown Prosecutor’s reference to the Royal Commission.

10. [155]

    Next, his Honour then gave emphatic directions with respect to the Crown Prosecutor’s comments about high profile cases in connection with the evidence of Ms Crowhurst’s good character:

11. [156]

    Neither applicant’s counsel objected to the reference to Rolf Harris or sought a further direction on that issue.

12. [157]

    Counsel for each of the applicants then addressed.

13. [158]

    The trial judge later referred to the Crown Prosecutor’s comments during his summing up.

14. [159]

    That occurred after his Honour had given clear directions in the summing up that there had been no challenge by the Crown to the evidence called by Ms Crowhurst to establish that she was a person of good character; that the jury should accept that Ms Crowhurst was a person of good character; that the fact that an accused was a person of good character was relevant to the likelihood of that person having committed the offence alleged; and that the jury could use the fact that a person is of good character to support the person’s credibility, which was important in a case where an accused person gave evidence: Summing up 74-75.

15. [160]

    There are three main strands to the applicants’ argument under Ground 8. First, that the Crown Prosecutor attacked Ms Crowhurst’s good character. Secondly, that the Crown Prosecutor referred to other high-profile cases in which persons of apparently good character had used that as a shield to commit other offences. The applicants submit that the Crown Prosecutor’s remark “tainted” the jury, and the trial judge erred in failing to discharge it. Thirdly, that the trial judge’s reference to Rolf Harris did more harm than good.

16. [161]

    The complaint that the Crown Prosecutor attacked Ms Crowhurst’s good character in his address should not be accepted. The Crown Prosecutor did not challenge the evidence of Ms Crowhurst’s good character (although he did suggest that the jury might think some of the witnesses “seemed a bit over the top and nongenuine in their praises of her”: Tcpt, 18 February 2020, 746.12). He did not attack Ms Crowhurst’s general character in his address. Instead, he advanced an argument going to weight: “You have to consider what weight you give to those witnesses just like you decide what weight you give to any other witnesses” (at 746.10-11; see also at 746.36-8). Part of that argument was that a person who has committed an offence may not have deserved the good reputation that they had enjoyed (at 746.34).

17. [162]

    However, the applicants’ complaint that the Crown Prosecutor should not have referred to other high-profile cases where persons of apparently good character had used that as a shield to commit other offences is well-made. That remark was irrelevant and prejudicial, for the reasons identified by the trial judge.

18. [163]

    But it does not necessarily follow that, as the applicants submit, the jury was “tainted”, or that the trial judge erred in failing to discharge it. On its face, the first of those submissions is directed to an irregularity and its effect on the trial; the second, to an erroneous decision of the trial judge. As the applicants are not legally represented, the precise legal scope of these arguments was not explored in their submissions, and it is necessary to consider the different legal analyses applicable on appeal to these arguments.

19. [164]

    The criterion for the exercise of the trial judge’s discretion on a discharge application is maintaining the fairness of the trial, and the test for discharge is one of necessity: Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 at 440 per Toohey, Gaudron, Gummow and Kirby JJ. However, necessity is to be understood in the context of the accused’s entitlement to a fair trial, and should not be understood as creating too high a bar: Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248 at [89(9)] per Dhanji J (Lonergan J agreeing). Considerations that may be relevant in the exercise of the discretion were discussed in Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486 at [126(2)] per Beazley P, Fullerton and Hamill JJ, and in Ilievski at [89(9)]. As was said in Crofts at 440:

20. [165]

    As to the last point, there may be particular difficulty in formulating a direction that does not refer specifically to the problematic material and by doing so reinforce the prejudice: Crofts at 441; Miller at [126(2)(f)]; Ilievski at [89(9)]. A related issue is the nature of the statements or evidence said to have given rise to the prejudice, including whether they were such as to “have been left vividly etched on the mind of the jury”: Crofts at 441. For example, in Crofts, “highly prejudicial and inflammatory” evidence was given in re-examination of the complainant immediately before the trial was adjourned over a weekend, with no direction given until the following Monday.

21. [166]

    Although the applicants complain of a failure to discharge the jury, the appeal pursuant to s 5(1) is against the conviction, not the discretionary decision of the trial judge refusing to discharge the jury: Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 at [67] per French CJ, Hayne, Kiefel and Bell JJ; Kibby v R [2024] NSWCCA 207 at [30] per Hamill J (Davies and Rigg JJ agreeing); Ilievski at [52], [89(7)] per Dhanji J (Lonergan J agreeing).

22. [167]

    A complaint on appeal from a conviction as to a failure by the trial judge to discharge the jury invokes the third limb of s 6(1) of the Criminal Appeal Act: Conway v R [2023] NSWCCA 265 at [29] per Basten AJA (Cavanagh and Dhanji JJ agreeing). The question under Ground 8 is thus whether the applicant has established that “on any other ground whatsoever there was a miscarriage of justice”. If so, it will be necessary to determine whether the Crown has established that there has not been a “substantial miscarriage of justice” for the purposes of the proviso to s 6(1).

23. [168]

    Brawn addressed the requirement of materiality in the context of what constitutes a miscarriage of justice for the purposes of the third limb. Although the Court referred to a number of examples of errors or irregularities amounting to a defect in a trial which would be capable of giving rise to a miscarriage of justice (see at [9] and [12]), their Honours said at [12] that the categories of potential miscarriage are not closed. One recognised category of irregularity consists of inappropriate or improper statements made in a Crown address: see, e.g., R v Livermore (2006) 67 NSWLR 659; [2006] NSWCCA 334 at [31] (referring to, among other categories, a “submission to the jury based upon material which is not in evidence” and “inflammatory comments, tending to arouse prejudice”). A prejudicial statement made to the jury by a Crown Prosecutor is clearly capable of constituting an irregularity or defect in the trial and, subject to the materiality requirement stated in Brawn, a miscarriage of justice. As noted above, that requirement is that the irregularity “could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred”: Brawn at [10]. The last words are important. It is necessary to have regard to what actually occurred at the trial, including any directions given by the trial judge.

24. [169]

    Although the appeal is against the conviction rather than the refusal to discharge the jury, the miscarriage of justice relied upon may, at least theoretically, consist in a House v The King (1936) 55 CLR 499; [1936] HCA 40 error in the trial judge’s exercise of the discretion to discharge the jury: see Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 at [61] per Brereton JA. However, as was said in Kibby at [30], an error in the trial judge’s reasons for declining to discharge the jury will not of itself establish a miscarriage of justice; conversely, the Court is not restricted to examining the reasons of the trial judge. That approach is consistent with what was said about materiality in Brawn. Since it is unnecessary for an applicant to demonstrate error in the decision not to discharge the jury, as Dhanji J suggested in Ilievski at [89(8)]:

25. [170]

    In this respect, “[i]n considering whether there has been a miscarriage of justice based on a failure to discharge a jury, the views of the trial judge will be entitled to significant weight”: Ilievski at [89(5)]; see also Kibby at [34]. Thus it was said in Crofts at 440-441, immediately following the passage quoted above, that “much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.”

26. [171]

    One final point is that, as Hamill J said in Kibby at [35], when determining whether there has been a miscarriage of justice:

27. [172]

    Thus, specifically in relation to inappropriate remarks made in a Crown Prosecutor’s address, it has been held that a trial judge’s direction may remove the risk of unfairness such that there is no miscarriage of justice: see, e.g., Ibrahim v R [2014] NSWCCA 160 at [42]-[46] per Simpson J (Hidden and Hamill JJ agreeing, especially at [75]-[76], [85]) (implication that defence carried onus of calling a missing witness); Crockford v R [2022] NSWCCA 115; (2022) 100 MVR 206 at [102]-[108], [123] per Basten AJA (Price and N Adams JJ agreeing) (submission to jury that witness and accused “got their heads together to come up with this story”, when proposition not put to witness); KNP v R [2006] NSWCCA 213 at [56]-[57], [61]-[62] per McClellan CJ at CL (James and Hall JJ agreeing) (series of “serious transgressions by the Crown Prosecutor”).

28. [173]

    In an exchange with counsel, the trial judge expressed the principle more emphatically than the formulation quoted above from Kibby: “one has to act on the assumption that the jurors are going to follow my directions”: Tcpt, 18 February 2020, 756.8-9. That formulation is consistent with the way McHugh J expressed the principle in Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [32]; see also JC v R [2021] NSWCCA 254 at [55] per Macfarlan JA (RA Hulme and Wright JJ agreeing): “a fundamental assumption that must be made concerning a criminal jury trial is that ‘the jury acted … on the evidence and in accordance with the trial judge’s directions …’” It is in any event clear that his Honour approached the question of discharge on the footing that notwithstanding judicial directions, the decision-making of juries may still be affected by matters of possible prejudice (see Gilbert at [13] per Gleeson CJ and Gummow J; see also Moore (a pseudonym) v R [2024] HCA 30; (2024) 98 ALJR 1119 at [42] per Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ). The trial judge expressly acknowledged that the “judgement call” he had to make was “whether … those directions are going to be strong enough in the context of this trial” (at 756.12-14).

29. [174]

    On the approach described above, the primary question under Ground 8 is whether, 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 realistically have affected the reasoning of the jury to the verdict of guilty that it returned. If so, there was a miscarriage of justice.

30. [175]

    It is nevertheless first appropriate to address the applicants’ submission that the trial judge erred in his discretionary refusal to discharge the jury. The submission should be rejected. Although the trial judge was not taken to the authorities governing the discretion to discharge discussed above, his Honour applied the correct principles when explaining the basis of his decision not to discharge the jury (Tcpt, 18 February 2020, 755.39-756.30, as set out above). As his Honour said, he had to make a judgment call about whether any directions would be strong enough in the context of the trial to ensure its fairness. He took into account the stage at which the incident had occurred, i.e., in the Crown’s address, that he proposed to give a direction immediately in the strongest terms, and that that would be followed by addresses for the defence and then the summing up. His Honour also took into account the nature of the Crown Prosecutor’s statements and their seriousness in the context of the contested issues: that they were raised as illustrative, and came in the context of a much longer address which properly focussed on the evidence. His Honour was satisfied, in the context of the trial as it was continuing, that his directions would be sufficient to safeguard the integrity and fairness of the trial. The applicants do not identify any House v The King error in that reasoning, and none is apparent.

31. [176]

    Returning to the primary question identified at [174] above, the applicants’ submission that the jury was irremediably “tainted” by the Crown address should also be rejected. In particular, it should not be accepted that the Crown Prosecutor’s reference to other high profile cases could realistically have affected the reasoning of the jury to the verdict of guilty in this case in the face of the trial judge’s strong directions. That is so largely for the reasons given by the trial judge when refusing to discharge the jury.

32. [177]

    First, the Crown Prosecutor’s reference to other high profile cases, irrelevant as it was, was by way of illustration only. This is not a case in which the prejudice arose from evidence that was wrongfully admitted. It was far removed from cases like Crofts, Miller, Ilievski and Kibby, which all involved evidence that was wrongfully given or admitted (or claimed to have been wrongfully admitted). In the circumstances of this case, the prejudicial force of what the Crown Prosecutor said was much lower than that of, say, the evidence given in re-examination by the complainant in Crofts. A similar conclusion about the prejudicial force of the Crown’s remarks is implicit in the distinction his Honour drew between these “illustrative” matters and the rest of the Crown address, “where the real focus was on the evidence” (Tcpt, 18 February 2020, 756.20-1).

33. [178]

    Secondly, the Crown Prosecutor’s remark was not about the evidence at the heart of the contested issues. The complainant and each applicant gave evidence and were cross-examined before the jury about the events the subject of the charges, and the addresses focussed on that evidence. In that context, the Crown’s allusion to other completely unrelated cases was relatively insignificant. That is consistent with the lack of prominence the Crown Prosecutor gave to the point. His reference to other high profile cases was a small part of a much longer address about the evidence.

34. [179]

    Thirdly, the trial judge gave a strongly worded direction shortly after the remark. His Honour emphasised the absence of any evidence suggesting that Ms Crowhurst was not of good character. His Honour twice described what the Crown Prosecutor had said as “completely irrelevant”, and directed the jury not to pay “the slightest attention to it again.” There is no reason to doubt the effectiveness of those directions in the circumstances to remove the risk of prejudice, that is, that the jury’s decision-making would be affected by the Crown Prosecutor’s remark. If anything was “left vividly etched on the mind of the jury”, it was that “other high profile cases” were utterly irrelevant to their task. And, as discussed above, the assessment of the likely effectiveness of those directions is an area where the trial judge had a considerable advantage over this Court, confined as it is to the transcript.

35. [180]

    Fourthly, following the addresses of counsel for the two applicants, the trial judge referred in his summing up to the direction he had given earlier about “two particular arguments which had no validity at all that needed to be dealt with by me immediately”. He also directed the jury that the unchallenged evidence of Ms Crowhurst’s good character was relevant to the likelihood of her having committed the offences alleged and to her credit, as discussed above.

36. [181]

    The effect of those matters is as follows.

    1. (1)

       When the Crown Prosecutor made a relatively insignificant but nevertheless inappropriate remark in his address, the timing, terms and repetition of the trial judge’s directions emphatically repudiated what the Crown Prosecutor had said.

    2. (2)

       To the extent that the complaint is that the Crown address “attacked” Ms Crowhurst’s character, that is not correct for the reasons given above. Moreover, if (which is far from clear) the complaint is that the jury was invited to treat the evidence of Ms Crowhurst’s good character as irrelevant, the trial judge’s directions as to the relevance of that evidence dispelled any such impression.

    3. (3)

       To the extent that the complaint is that the Crown address invited the jury to reason “to the effect that, in some way, shape or form, the guilt of those people can be a guide to the guilt of Narelle Crowhurst”, the direction given shortly after the issue arose expressly repudiated any such process of reasoning: Tcpt, 18 February 2020, 758.1-3.

    4. (4)

       The applicants have not suggested any other process of reasoning that could have affected the reasoning of the jury to the verdict of guilty that it returned.

    5. (5)

       In the context of the trial that was had, the prejudice occasioned by the Crown Prosecutor’s reference to other high profile cases could not realistically have affected the reasoning of the jury to the verdict of guilty.

37. [182]

    There is one further matter to address. The trial judge’s reference to Rolf Harris was unfortunate. As the applicants submit, it did not assist the jury in ignoring the Crown Prosecutor’s comments. But the context was important. His Honour had already specifically referred to the fact that the Crown Prosecutor had “alluded to other high-profile cases where persons of apparently good character, were able to use that as a shield to commit other offences”: Tcpt, 18 February 2020, 757.49-758.1. The Crown Prosecutor’s remark had effectively invited the jury to speculate about the cases to which he was referring. His Honour used Rolf Harris as a specific example of such cases in order to illustrate why they were irrelevant; and he did so in strong terms:

38. [183]

    In that context, the reference to Rolf Harris, while unhelpful, was no more harmful than what the jury must have been speculating about in any event. It did not undermine the force of the direction his Honour gave.

39. [184]

    It is also significant that his Honour had earlier informed counsel that he proposed to refer to Rolf Harris, to which there was no objection. Nor was there any application for a further direction after the direction his Honour gave. It is open to infer that that was because defence counsel did not perceive any harm in what his Honour proposed to say and then said. In any event, the failure to object must be seen as a forensic decision from which the applicants should not now be permitted to depart. To the extent that Ground 8 complains of the trial judge’s reference to Rolf Harris, leave is required pursuant to r 4.15. It should not be granted.

40. [185]

    As to the balance of the ground, in the result, the applicants have failed to establish a material irregularity amounting to a miscarriage of justice. Leave is required pursuant to s 5(1)(b), but the ground was fairly arguable and required close consideration. Leave should be granted, but Ground 8 should be dismissed.

The Proviso

1. [186]

   In light of the conclusions reached above, the applicants have not made out any miscarriage of justice occasioning the need to consider the proviso to s 6(1).

Conclusion on conviction appeals

1. [187]

   The applicants have not made out any ground of appeal against their convictions. Those appeals must be dismissed.

Orders

1. [188]

   The orders I propose with respect to the conviction appeals are:

   1. (1)

      In respect of Mr Crowhurst’s appeal against conviction:

   2. (2)

      In respect to Ms Crowhurst’s appeal against conviction:

2. [189]

   McNAUGHTON J: I have had the benefit of reading the draft judgments of both McHugh JA (in relation to the conviction appeals) and Coleman J (in relation to the sentence appeals).

3. [190]

   As to the conviction appeals I agree with McHugh JA, for the reasons he has provided.

4. [191]

   As to the sentence appeals, I agree with Coleman J, for the reasons he has provided.

5. [192]

   I agree with the orders proposed by each of McHugh JA and Coleman J.

6. [193]

   COLEMAN J: The applicants, Mr and Ms Crowhurst, each seek leave to appeal, under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) against their conviction and under s 5(1)(c) against their sentences. McHugh JA has dealt with the conviction appeals. I respectfully agree with his Honour’s comprehensive reasons and the orders he proposes on the conviction appeals. These reasons concern the sentence appeals.

7. [194]

   The applications for leave to appeal were both out of time. The applicants in effect seek an extension of time within which the notices of appeal can be filed (see s 10(1)(b) Criminal Appeal Act and rule 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)).

8. [195]

   The Court has a discretion to extend the time for the filing of a notice to appeal. Whether an extension is granted is to be determined by the interests of justice in the particular case: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”) at [32]. In exercising the discretion, the Court should have regard to the prospects of success of the appeal: Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162 at [92]; Kentwell at [32]-[33] and the explanation for why the appeal was not brought in time, particularly if the delay is considerable: Hijazi v R [2020] NSWCCA 97 at [55]. Reference to the merits of the appeal in an appeal against sentence should be addressed by reference to s 6(3) of the Criminal Appeal Act: Kentwell at [34].

9. [196]

   The Crown opposes an extension of time, submitting limited prospects of success militate against any extension. The Crown also submits the interests of justice require consideration of the importance of finality, and the interests of the Crown, the community, witnesses and the complainant who faces further potential suffering if the appeal goes ahead.

10. [197]

    As the applicants are self-represented on the appeal, I consider that some leeway should be afforded to them. I consider it is in the interests of justice to grant the extension of time to each of the applicants to file the notices of appeal against their sentences. For the reasons which follow, however, I propose that each of their appeals against the sentences imposed be dismissed.

11. [198]

    The jury delivered its verdicts on 21 February 2020. As has been said, the applicants were each found guilty of maintaining an unlawful sexual relationship with a child contrary s 66EA(1) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of life imprisonment.

12. [199]

    The applicants were on bail following the jury’s verdicts. A sentencing hearing took place on 24 June 2020. The applicants were represented by counsel at the sentencing hearing. Submissions were filed on their behalf and evidence as to their subjective cases presented. Each of their counsel made submissions on sentence for each of them.

13. [200]

    On 17 July 2020, the applicants were sentenced by McLennan SC DCJ to 13 years imprisonment, with a non-parole period of 8 years. The applicants are first eligible for parole on 16 July 2028.

14. [201]

    As the applicants were self-represented at the appeal, their grounds of appeal are somewhat difficult to ascertain. In its written submissions (“CWS”), the Crown has helpfully distilled the grounds from the material filed by the applicants. I will adopt those grounds for the purposes of these reasons.

15. [202]

    There are 5 grounds of appeal for both applicants against the sentences imposed (grounds 12-16) with an additional ground referable solely to Ms Crowhurst (ground 17). The grounds are:

    1. (1)

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

    2. (2)

       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”.

    3. (3)

       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 Office of The Director of Public Prosecutions (“ODPP”).

    4. (4)

       Ground 15: The sentences are manifestly excessive.

    5. (5)

       Ground 16: The applicants have been locked in their cells for in excess of 200 days in total.

    6. (6)

       Ground 17 (solely referable to Ms Crowhurst): Narelle Crowhurst has suffered “extreme ongoing neglect, abuse and maltreatment” within the medical system while in custody. 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.

16. [203]

    I will first set out a summary of the remarks of the sentencing judge and then deal with the grounds of appeal. Whilst McHugh JA has referred to factual matters in his reasons dealing with the conviction appeals, I will refer to the relevant factual findings of the sentencing judge. Whilst this may result in some repetition, it is convenient to repeat the factual matters for the purposes of understanding the grounds of appeal on the sentences and the resolution of those grounds.

17. [204]

    After identifying the counts in the indictment against each applicant, indicating that the primary counts under s 66EA were count 1 against Mr Crowhurst (counts 2-8 being alternatives to count 1) and count 9 against Ms Crowhurst (counts 10-16 being alternatives to count 9), his Honour noted that the allegation concerning the maintaining of an unlawful sexual relationship with a child under 16 related to the complainant. It commenced in Lismore and allegedly continued in Murwillumbah when she was between the ages of 13 and 15 years old.

18. [205]

    The sentencing judge found the applicants acted at times in concert, and on several occasions, alone. He outlined the various particulars of the individual (alternative) counts against each applicant. He said that the jury’s verdicts in respect of both applicants on the s 66EA counts meant that it was satisfied beyond a reasonable doubt that each of them had engaged in two or more unlawful sexual acts with the complainant.

19. [206]

    His Honour correctly stated that pursuant to s 66EA, the jury was not required to identify the sexual offences that led to its finding of guilt under that section. He accepted a submission from each of the applicants’ counsel at the time that he should identify in respect to both accused, at a minimum, two offences that amount to sexual acts as particularised and if possible, identify more beyond reasonable doubt.

20. [207]

    His Honour was satisfied beyond reasonable doubt about the honesty of the complainant’s account that she had been “the sex toy” of the applicants. He found her to be fundamentally reliable in her recall of important events in so far as they occurred in Lismore. He said she was less reliable in her recall of events in Murwillumbah. He was left in a state of reasonable doubt as to whether either applicant “maintained” a sexual relationship with her after they moved to that town.

21. [208]

    His Honour found that a sexual relationship with the applicants commenced in the context of the complainant babysitting for them and that as a habit she began sleeping at their house as opposed to returning to her house just across the road late at night. He said the applicants knew that the complainant came from a dysfunctional household. His Honour was satisfied beyond reasonable doubt that the sexual relationship commenced at the initiation of Mr Crowhurst while the complaint was sleeping at their house in the “sleep out room”. After she heard the applicants arguing about whether to get her into their bed with them, Mr Crowhurst came into the sleep out room, knelt beside the complainant’s bed and put his hand underneath her underpants and penetrated her vagina with his finger. He asked her to go to bed with them, but she said no as she could hear Ms Crowhurst was not happy.

22. [209]

    The next day the complainant spent the day with the applicants at the ‘Scrub to Pub’ social event. His Honour accepted that at that event Ms Crowhurst spoke to the complainant and it was apparent that she knew what Mr Crowhurst had done to the complainant the night before. Ms Crowhurst said it was okay, asked if the complainant would go to bed with them and if she was a virgin. The complainant mistakenly said she was not.

23. [210]

    That night when they got back to the applicant’s house, once the children were put to bed, a pornographic movie was put on and then the complainant had a bath with the applicants. She then ended up ‘going to bed’ with them. Various sexual acts were performed including mutual oral sex, and digital and penile/vaginal sexual intercourse.

24. [211]

    His Honour found beyond reasonable doubt that on that occasion Mr Crowhurst engaged in indecent assault in company by kissing the complainant, touching and sucking her breasts, sexual intercourse by digital penetration, fellatio in company and penile/vaginal intercourse. He found Ms Crowhurst engaged in indecent assault in company by kissing the complainant, touching and sucking her breasts, sexual intercourse by digital penetration and cunnilingus in company and being in company with Mr Crowhurst when he had penile/vaginal intercourse with the complainant.

25. [212]

    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.

26. [213]

    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.

27. [214]

    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.

28. [215]

    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.

29. [216]

    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.

30. [217]

    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.

31. [218]

    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.

32. [219]

    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.

33. [220]

    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.

34. [221]

    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.

35. [222]

    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.

36. [223]

    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.

37. [224]

    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].

38. [225]

    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:

39. [226]

    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).

40. [227]

    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.

41. [228]

    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)).

42. [229]

    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:

43. [230]

    His Honour applied that approach in his remarks on sentence.

44. [231]

    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).

45. [232]

    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).

46. [233]

    The applicants submit that:

47. [234]

    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.

48. [235]

    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].

49. [236]

    There is no substance to any of grounds 12, 13 or 14. I would refuse leave to argue those grounds and dismiss them.

50. [237]

    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:

51. [238]

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

52. [239]

    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.

53. [240]

    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.

54. [241]

    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.

55. [242]

    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.

56. [243]

    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.

57. [244]

    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.

58. [245]

    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.

59. [246]

    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.

60. [247]

    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.

61. [248]

    I would grant leave to appeal on this ground but dismiss it.

62. [249]

    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.

63. [250]

    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.

64. [251]

    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:

65. [252]

    These principles have recently been affirmed: Futcher v R [2025] NSWCCA 102 at [89]-[90] (Harrison CJ at CL, Garling and Yehia JJ agreeing).

66. [253]

    I would refuse leave to argue ground 16 and dismiss it.

67. [254]

    Again, this ground (which is solely referable to Ms Crowhurst) relies on events which post-date the sentence.

68. [255]

    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:

69. [256]

    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:

70. [257]

    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.

71. [258]

    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.

72. [259]

    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.

73. [260]

    I would refuse leave to argue ground 17.

74. [261]

    The orders I would propose are:

    1. (1)

       In respect to each appeal:

    2. (2)

       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.