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Court of Criminal Appeal 17 September 2025

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

[2025] NSWCCA 146

Sexual offences

Citation: Paul Crowhurst v R; Narelle Crowhurst v R (No 2) [2025] NSWCCA 146
Court: NSW Court of Criminal Appeal
Date: 17 September 2025
Judges: McHugh JA; McNaughton J; Coleman J

Background

A married couple (referred to here as the male applicant and the female applicant) were convicted by a jury in the District Court at Lismore on 21 February 2020. Each was found guilty of maintaining an unlawful sexual relationship with a child under section 66EA(1) of the Crimes Act 1900 (NSW). The complainant had been their neighbour and babysitter, and the Crown alleged the relationship commenced in 1989 when the complainant was 13 years old.

On 17 July 2020, each applicant was sentenced to 13 years imprisonment with a non-parole period of 8 years. Both sought leave to appeal against their convictions and sentences.

The applicants ran 17 grounds of appeal between them, raising issues spanning the constitutionality of section 66EA, alleged investigative and prosecutorial misconduct, the fairness of the trial, the proper operation of the jury's verdict, and the conditions of the female applicant's custody.

  • Whether section 66EA of the Crimes Act 1900 (NSW) operates retrospectively in a manner inconsistent with the International Covenant on Civil and Political Rights (ICCPR)
  • Whether the standard of proof required under section 66EA falls short of the requirements for a jury trial
  • Whether the applicants were denied a fair trial due to forensic disadvantage arising from the passage of time
  • Whether the investigating police officer failed to properly investigate the case or coached a witness
  • Whether the ODPP's delay in charging the applicants amounted to an irregularity or unfairness
  • Whether incomplete disclosure by the Crown Prosecutor regarding the departure of an ODPP solicitor during trial constituted a material irregularity
  • Whether the sentencing judge's findings were inconsistent with the jury's verdicts
  • Whether the trial judge erred in refusing to discharge the jury after the Crown Prosecutor made prejudicial remarks about the female applicant's character
  • Whether the trial judge was obliged to ask the jury which specific acts it found proved
  • Whether the sentencing judge was required to sentence the applicants on the basis most favourable to them, and whether he impermissibly introduced additional charges
  • Whether the sentences were manifestly excessive
  • Whether the female applicant's custodial conditions amounted to a breach of the ICCPR

Decision

Conviction appeal (McHugh JA, McNaughton J and Coleman J)

The Court rejected the argument that section 66EA was invalid or otherwise unenforceable by reason of the ICCPR. The ICCPR has not been enacted into Australian domestic law and therefore does not confer rights on individuals inconsistent with domestic legislation. Parliament retains the power to enact retrospective criminal legislation. The Court also confirmed that section 66EA(5)(a) requires the jury to be satisfied beyond reasonable doubt that an unlawful sexual relationship existed, and that the trial judge had directed the jury correctly on that standard.

The forensic disadvantage ground failed. The trial judge had given appropriate directions, and the applicants did not demonstrate any unfairness, wrong decision, or miscarriage of justice arising from the absence of witnesses or records. Allegations that the investigating officer coached a witness, and that the ODPP manipulated the timing of charges to gain a forensic advantage, were rejected as unsupported by any proper basis.

The Court found that incomplete disclosure by the Crown Prosecutor regarding the reason an ODPP solicitor was removed from the trial did constitute an irregularity. However, applying Brawn v The King [2025] HCA 20, the Court concluded the irregularity was not material in the sense that it could realistically have affected the jury's verdicts. The sentencing judge's findings that he was not satisfied beyond reasonable doubt about some aspects of the relationship were limited to the "maintaining" element during one location and were not inconsistent with the guilty verdicts.

On the ground concerning the Crown Prosecutor's remarks about the female applicant's character, the Court acknowledged the remarks were inappropriate. It nonetheless held, again applying Brawn, that the trial judge had given adequate corrective directions, and any prejudice could not realistically have affected the jury's verdict given those directions.

Sentence appeal (Coleman J, McHugh JA and McNaughton J)

The Court confirmed there is no obligation on a trial judge under section 66EA to ask the jury which particularised unlawful sexual acts it found proved, nor is the jury required to specify those acts. The sentencing judge was not therefore required to sentence on "the most favourable basis" in the way the applicants argued. The allegation that the sentencing judge impermissibly introduced additional charges was also rejected.

Leave to argue manifest excess was granted but the appeal on that ground was dismissed. The fresh evidence relating to the female applicant's medical conditions since sentencing was not admitted, as it could not demonstrate error in the sentence originally imposed. The ICCPR ground relating to custodial conditions was refused leave, with the Court stating that the ICCPR has not been incorporated into domestic law and that the custodial conditions described did not amount to torture.

Orders Made

For each appeal:
- Leave granted pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)
- Leave refused under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) with respect to grounds 12, 13, 14 and 16; those grounds dismissed
- Leave granted under s 5(1)(c) with respect to ground 15 (manifest excess) but the appeal on that ground dismissed

For the female applicant's appeal additionally:
- Leave refused under s 5(1)(c) with respect to ground 17; that ground dismissed

Key Takeaways

  • The ICCPR does not form part of Australian domestic law and cannot be invoked to invalidate or constrain the operation of state criminal legislation such as section 66EA of the Crimes Act 1900 (NSW).

  • Under section 66EA, the jury must be unanimously satisfied beyond reasonable doubt that an unlawful sexual relationship existed, but is not required to unanimously agree on which specific particularised acts formed the basis of that finding.

  • No obligation rests on a sentencing judge to enquire of the jury which acts it found proved following a conviction under section 66EA, and the "most favourable basis" sentencing obligation does not arise in the way the applicants contended.

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that a prosecutorial irregularity (here, incomplete disclosure about the removal of a solicitor) will not vitiate a verdict unless it was material in the sense of being capable of realistically affecting the jury's reasoning, consistent with the High Court's approach in Brawn v The King [2025] HCA 20.

  • Fresh evidence relating to a custodial condition or medical treatment arising after sentencing cannot, of itself, establish error in the original sentence imposed and will not ordinarily be admitted on a sentence appeal where the appeal is dismissed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66EA; also ss 61A, 61E, 61H, 61M, 66C (historical versions)
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 10(1)(b)
- Evidence Act 1995 (NSW), ss 38, 165B
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.5(5), 4.15
- Criminal Law Consolidation Act 1935 (SA), s 50

Cases:
- Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
- Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Fuller v R [2022] NSWCCA 203
- Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2