Paul Crowhurst v R; Narelle Crowhurst v R

Legislation Cited: 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Criminal Appeal Rules (1952 SI 2) (NSW) (repealed), rr 3A, 23C, 23D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 Cited: 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

Category: Principal judgment

Parties: Proceedings 2025/129781
Paul Crowhurst (Applicant)
Rex (Respondent)
Proceedings 2025/129777
Narelle Crowhurst (Applicant)
Rex (Respondent)

Representation: Counsel:
In person (Applicants)
T Abdulhak (Respondent)
Solicitors:
In person (Applicants)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2025/129781
2025/129777

Publication restriction: Nil

Ex Tempore JUDGMENT (REVISED)

1. McHUGH JA: In these two matters which have been heard together, the applicants, Paul and Narelle Crowhurst, are self-represented. Each has filed an application for release on bail pending the determination of appeals and applications for leave to appeal brought pursuant to s 5 of the Criminal Appeal Act 1912 (NSW) against conviction and sentence (which I will refer to as their appeals). The circumstances in which the bail applications have been heard are somewhat unusual.

2. Each applicant was found guilty, following a trial before McLennan SC DCJ and a jury in the District Court of New South Wales at Lismore on 21 February 2020, of a charge under s 66EA of the Crimes Act 1900 (NSW). On 17 July 2020, the trial judge sentenced each applicant to imprisonment for 13 years, with a non-parole period of eight years. The sentences commenced on 17 July 2020, so that each applicant is first eligible for parole on 16 July 2028.

3. Mr Crowhurst filed a notice of appeal/notice of application for leave to appeal against his conviction on 19 March 2020 (that is, before sentence). It appears that that document was not accompanied by a statement of the grounds of appeal or written submissions in support of the appeal, as required by r 23C of the Criminal Appeal Rules (1952 SI 2) (NSW) as then in force. By r 23D, his notice had effect as a notice of intention to appeal/notice of intention to apply for leave to appeal. By r 3A(1), that notice had effect for six months, that is, until 18 September 2020. On 2 February 2021, he applied for an extension of time within which to appeal or to apply for leave to appeal against conviction and sentence. That application was granted and the time was extended until 10 May 2021.

4. Ms Crowhurst filed a notice of intention to appeal/notice of intention to apply for leave to appeal against her conviction on 12 March 2020. That notice had effect for six months, that is, until 11 September 2020. On 2 February 2021, she applied for an extension of time within which to appeal or to apply for leave to appeal against conviction and sentence. That application was granted and the time was extended until 10 May 2021.

5. Neither applicant suggests that they were granted any further extensions of time after 10 May 2021. Each applicant filed a notice of appeal against conviction and sentence on 29 October 2024, although they say that they attempted to do so from May 2024. The applicants do not dispute that their notices of appeal were filed well out of time. Each has made an application for leave to file a notice of appeal after expiry of the filing period pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

6. Those applications, which included full argument on the substance of the appeals, were heard today, immediately before the applications for release on bail. The Court has reserved its judgment on those matters, including the applications for leave to file the notices of appeal after expiry of the filing period.

Jurisdiction to hear and determine the bail applications

7. The Court has power to hear the bail applications in the circumstances specified in Pt 6 of the Bail Act 2013 (NSW) (Bail Act), s 48 of the Bail Act and see, e.g., Carnaby v The Queen [2021] NSWCCA 203 at [6]-[8].

8. Section 61 which is in Pt 6, Div 2 of the Bail Act, relevantly provides:

61 Power to hear bail application if proceedings are pending in court

A court may hear a bail application for an offence if proceedings for the offence are pending in the court.

9. By s 59 of the Bail Act,

59 Meaning of pending proceedings

In this Part, a reference to proceedings for an offence pending in a court is a reference to substantive proceedings pending in the court.

10. Section 5 of the Bail Act provides:

5 Proceedings for an offence

(1) In this Act, proceedings for an offence means criminal proceedings against a person for an offence (whether summary or indictable), and includes the following—

...

(d) proceedings on an appeal against conviction or sentence,

… .

…

(3) Proceedings for an offence are substantive unless the proceedings are—

(a) proceedings relating to bail, or

(b) proceedings on an appeal against any interlocutory judgment or order given in proceedings, or

(c) proceedings declared to be non-substantive by the regulations.

11. Those provisions must be read with s 10(2) of the Criminal Appeal Act: Mashayekhi v R [2021] NSWCCA 55 at [14] (Hoeben CJ at CL and Wilson J); see also at [40] (Hamill J). That subsection provides:

10 Method and time for making appeal

…

(2) For the purposes of any other Act or statutory instrument (whether enacted or made before or after the commencement of this subsection)—

…

(b) an appeal against a conviction or sentence is taken to be pending in the court if notice of intention to appeal or apply for leave to appeal has been duly given to the court (unless the appeal or application has not been made within any time it is required to be made by the rules of court).

12. If the applicants had filed their notices of appeal against conviction or sentence within time, they would plainly have come within these provisions, such that the Court would have had power to hear the bail applications.

13. However, since the notices of appeal were not filed within the relevant time limit, the notices have not been “duly given”. Neither applicant has proceedings for an offence “pending in the court” within the meaning of s 61: Mashayekhi at [15].

14. It follows that the Court has no jurisdiction to hear the bail applications, unless the Court grants the applicants’ applications for leave to file their notices of appeal after expiry of the filing period.

15. The applications to file the notices of appeal after expiry of the filing period must be determined on their merits, having regard to the interests of justice. The interests of justice require consideration not only of the interests of an applicant, but also those of the Crown (representing the community), complainants, their families and witnesses, as well as the interest in the finality of proceedings: *Darwiche v R; El-*Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 at [38]-[39]. In general, that requires at least some consideration of the prospects or merits of the grounds of appeal, and, particularly in cases of lengthy delay, an explanation of it.

16. In some cases, the interests of justice may so clearly favour granting an application to file a notice of appeal after expiry of the filing period that it is appropriate to determine that question before full consideration of the merits of the underlying appeal. This is not such a case.

17. Here, the delay is in the order of three years. The explanation advanced on behalf of the applicants is not a powerful one. They say that Legal Aid funding was granted for merit advices in September 2020, which was determined in October 2021. The applicants disagreed with the advice. Their solicitor was acting pro bono in her spare time. They say that they were waiting for the resolution by the Bar Council and the Law Society of complaints about the Crown Prosecutor and solicitor, which did not occur until November 2023. They applied for further Legal Aid funding which was denied in December 2023. They say that they unsuccessfully attempted to lodge notices of appeal in this Court on 14 May 2024.

18. Taken together, those matters are not a strong explanation for a three-year delay. However, the weakness of the explanation is not fatal to the applications. The question remains, what is required by the interests of justice as a whole.

19. As to the merits of the underlying appeals, although the Court has already heard full argument, it has reserved judgment. No decision has yet been made in either matter. As was recently said in a somewhat similar context in DC v Director of Public Prosecutions (NSW) [2024] NSWCCA 235 at [13], where the Court had heard full argument on the merits of the appeal, it had jurisdiction pursuant to s 61, and the applicant for bail asserted that he had a high chance of success on the appeal, the “best that can be said is that arguments have been presented by both sides”. The determination of the bail applications is not the occasion to resolve the underlying arguments on the appeals.

20. In the circumstances, it is not appropriate at this stage to determine whether leave should be granted to file the notices of appeal after expiry of the filing period.

21. That being so, the Court lacks jurisdiction to hear the bail applications.

22. In Mashayekhi, their Honours concluded at [19]-[20] that the appropriate order in that situation was to strike out the bail application for want of jurisdiction; see also at [35] (Hamill J). That is the order I propose.

Bail would have been refused in any event

23. However, even if the Court had jurisdiction to hear the bail applications, they would have been refused. The reasons for that conclusion can be stated shortly.

24. Section 22(1) of the Bail Act, which applies in this case, provides:

22 General limitation on court’s power to release

(1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision—

(a) an offence for which an appeal is pending in the Court of Criminal Appeal against—

(i) a conviction on indictment, or

(ii) a sentence imposed on conviction on indictment,

(b) an offence for which an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a).

25. The context in which the requirement for “special or exceptional circumstances … that justify that bail decision” arises is important. It is that each applicant has been convicted after trial: DC at [10]. As has often been said, that requirement creates a significant hurdle to an applicant for bail.

26. The relative strength of the grounds of appeal has been addressed above. The other matters on which both applicants rely are as follows.

27. They had had bail for a considerable period of time prior to their being sentenced. In light of the context in which s 22 applies, that is, after conviction, that consideration can have very little if any weight. Similarly, the fact that the applicants met their reporting conditions is not a special or exceptional circumstance; it was what was required of them.

28. The applicants asserted that they had had difficulty in preparing for the hearing while in custody. Even if that were so, it could not be a consideration at this stage, after the hearing. In any event, the applicants were able to file extensive material in support of their appeals.

29. It is true that the applicants have served a substantial part of their non-parole periods, which is a relevant factor. However, that is at least in part due to their delay in instituting their appeals. Moreover, neither applicant will be eligible for parole until 16 July 2028, which is more than three years from the date of the hearing. The period of each applicant’s sentence after they become eligible for parole is five years. Given that the appeals have been heard, this is not a case in which denial of bail would undermine the utility of the appeals.

30. Both Mr and Ms Crowhurst rely on their medical conditions. In particular, Ms Crowhurst relies on her medical needs, including the fact that she has recently had hip surgery together with what she alleges has been inadequate medical care including transporting her in an inappropriate vehicle in a wheelchair in which she was thrown about. She has put a substantial body of material before the Court, much of it conclusory, in support of that submission. However, correspondence from New South Wales Justice Health and from the Governor of Dillwynia Correctional Centre which the Crown put before the Court indicates that the applicant has received and continues to receive appropriate treatment for medical conditions. There is no reason to think that Ms Crowhurst will be subject to onerous custodial conditions between now and the determination of the appeals. Nor is there clear evidence that Justice Health is unable or unwilling to provide appropriate medical treatment to either of the applicants.

31. In the result, neither applicant is able to establish special or exceptional circumstances. Had there been jurisdiction, their applications would have been refused.

32. In each matter the order I propose is:

33. Application struck out for want of jurisdiction.

34. McNAUGHTON J: I agree.

35. COLEMAN J: I also agree.

**********

Amendments

17 April 2025

Catchwords corrected.