Citation: Paul Crowhurst v R; Narelle Crowhurst v R [2025] NSWCCA 57
Court: Court of Criminal Appeal, New South Wales
Date: 4 April 2025
Judge(s): McHugh JA; McNaughton J; Coleman J
Background
The two applicants were convicted in 2020 in the District Court at Lismore of offences under s 66EA of the Crimes Act 1900 (NSW). Each was sentenced to 13 years' imprisonment with a non-parole period of eight years, commencing 17 July 2020, making each eligible for parole from 16 July 2028.
Both applicants filed initial notices of appeal or intention to appeal shortly after conviction, but those notices were not accompanied by the required grounds and submissions, meaning they operated as notices of intention only. Extensions of time were granted to May 2021. However, neither applicant filed substantive notices of appeal within that extended period. Each eventually filed notices of appeal in October 2024, more than three years out of time.
The applicants appeared self-represented before the Court of Criminal Appeal, seeking bail pending the determination of their appeals and applications for leave to appeal. On the same day, the Court heard full argument on the substantive appeals and the applications for leave to file the notices of appeal out of time, reserving judgment on those matters before turning to the bail applications.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction under s 61 of the Bail Act 2013 (NSW) to hear the bail applications, given that the notices of appeal were filed significantly out of time
- Whether notices of appeal filed outside the permitted period were "duly given" for the purposes of s 10(2) of the Criminal Appeal Act 1912 (NSW), such that an appeal was "pending in the court"
- Whether, had jurisdiction existed, the applicants could have established the "special or exceptional circumstances" required under s 22 of the Bail Act 2013 (NSW) to justify the grant of bail pending appeal
Decision
Jurisdiction. The Court held that it lacked jurisdiction to hear the bail applications. Under s 61 of the Bail Act, a court may hear a bail application only if proceedings for the offence are "pending in the court." Section 10(2)(b) of the Criminal Appeal Act provides that an appeal is taken to be pending only where notice of intention to appeal has been "duly given." Because the applicants' notices were filed well outside the relevant time limits, they had not been duly given, and no appeal was pending before the Court. The Court applied its earlier decision in Mashayekhi v R [2021] NSWCCA 55, which confirms that jurisdiction under s 61 depends on whether the procedural requirements for instituting an appeal have been met.
Leave to file out of time. Jurisdiction would have revived if the Court had granted the applicants leave to file their notices of appeal after expiry of the filing period. The Court acknowledged that such applications must be determined by reference to the interests of justice, encompassing the interests of the applicants, the Crown, victims, their families, and the broader principle of finality. The explanation for the three-year delay, including reliance on pro bono assistance, Legal Aid funding delays, and unresolved disciplinary complaints, was described as "not a strong" one. Because the Court had already heard full argument on the merits of the appeals and reserved its judgment, it was not appropriate to pre-empt that reserved decision by determining the leave applications at the bail stage. The bail applications were therefore struck out for want of jurisdiction.
Bail in any event. The Court went on to consider, on an alternative basis, whether bail would have been granted had jurisdiction existed. Under s 22 of the Bail Act, persons convicted and sentenced to imprisonment must establish special or exceptional circumstances before bail can be granted. The Court found that neither applicant met that threshold. The partial service of their sentences carried some weight, but was diminished by the applicants' own delay in bringing their appeals. Medical conditions, including Ms Crowhurst's recent hip surgery and complaints about custodial medical care, were considered but not established as a ground for bail: correspondence from NSW Justice Health and the relevant correctional centre indicated that appropriate treatment was being provided. The Court was not persuaded that custodial conditions between the hearing and the determination of the appeals would be unduly onerous for either applicant.
Orders Made
- In each matter: Application struck out for want of jurisdiction.
Key Takeaways
- Under s 61 of the Bail Act 2013 (NSW), read with s 10(2)(b) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal has jurisdiction to hear a bail application only where a notice of intention to appeal has been "duly given," meaning filed within the relevant time limits or an applicable extension period.
- Notices of appeal filed significantly out of time are not "duly given" and do not bring an appeal within the meaning of proceedings "pending in the court," thus depriving the court of jurisdiction to hear an associated bail application.
- Where the court has reserved its judgment on a leave-to-appeal application heard on the same day as the bail application, it is not appropriate to resolve the leave question at the bail stage as a jurisdictional stepping-stone.
- A three-year unexplained delay in instituting an appeal is a significant obstacle to obtaining leave to file out of time, even though a weak explanation is not necessarily fatal: the interests of justice are assessed as a whole, including the interests of victims and the principle of finality.
- Reaching the "special or exceptional circumstances" threshold under s 22 of the Bail Act for post-conviction bail is a high bar: partial service of a sentence and medical conditions addressed within the correctional system were each insufficient, particularly where the applicants' delay in appealing had itself contributed to the time already served.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 5, 22, 48, 59, 61
- Criminal Appeal Act 1912 (NSW), ss 5, 10
- Crimes Act 1900 (NSW), s 66EA
- Criminal Appeal Rules (1952 SI 2) (NSW) (repealed), rr 3A, 23C, 23D
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5
Cases
- Carnaby v The Queen [2021] NSWCCA 203
- Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
- DC v Director of Public Prosecutions (NSW) [2024] NSWCCA 235
- Mashayekhi v R [2021] NSWCCA 55