R v Mulvihill

[2013] NSWSC 1190

Supreme Court

New South Wales

Medium Neutral Citation:	R v Mulvihill [2013] NSWSC 1190
Hearing dates:	22 August 2013
Decision date:	27 August 2013
Before:	Price J
Decision:	Conditional Bail Granted
Catchwords:	CRIMINAL LAW - bail - murder - whether exceptional circumstances exist
Legislation Cited:	Bail Act 1978 s 32, s 32(1)(a), s 32(1)(b) s 32(1)(c)(i)-(vi) s 32(c)(iv), s 32(7)
Cases Cited:	R v Connelly (Supreme Court of New South Wales, Hoeben J, 16 February 2006, unreported) R v Jacobs [2008] NSWSC 417 R v Pirini (Supreme Court of New South Wales, McClellan CJ at CL, 8 September 2009, unreported) R v Pirini (Supreme Court of New South Wales, James J, 20 April 2010, unreported) R v Young [2006] NSWSC 1499
Category:	Principal judgment
Parties:	Regina Paul Darren Mulvihill
Representation:	Counsel: Ms K Shead (Crown) Mr P Hamill SC (Applicant) Solicitors: Ms D Weston Director of Public Prosecutions (Respondent) Mr M Cavanagh (Applicant)
File Number(s):	2012/222491
Publication restriction:	Non-Publication order made 27.8.13. The mobile phone numbers of the approved supervisors are not to be published and remains in place until further order of the court.

Judgment

1. PRICE J: Paul Darren Mulvihill ("the applicant") applies for bail. He is charged with the murder of Rachelle Yeo, who died as a result of stab wounds to her neck and chest on 16 July 2012. The Crown opposes the bail application. Apart from the provisions of s 32 Bail Act 1978 which apply to all bail applications, the Bail Act provides that bail is not to be granted for an offence of murder unless the court is satisfied that exceptional circumstances justify the grant of bail.

1. Section 32(7) Bail Act provides that matters beyond those identified in s 32 which the court accepts as relevant may be considered when determining an application for bail to which s 9C relates..

Bail History

1. Before advancing further, it is convenient to mention that the applicant was granted bail on strict conditions by Davies J on 11 October 2012. His Honour considered that the applicant had demonstrated exceptional circumstances being a combination of the particular nature of the offence, the difficulty of the custodial conditions both for the preparation of the applicant's defence and the ability to deal with his family law proceedings and the stringency of the proposed bail conditions. His Honour assessed the strength of the Crown case to be "a moderate to a moderately strong one" on the available material.

1. The applicant's bail was revoked on 21 January 2013 by Reiss LCM in the Local Court at Parramatta as he did not comply with a bail condition that required him to proceed directly to and from the reporting police station and arrive back at his bail residence within the prescribed time.

1. On 21 March 2013, Campbell J granted the applicant conditional bail. His Honour was in agreement with Davies J's assessment of the strength of the Crown case. However, the applicant's bail was revoked by Price LCM on 15 June 2013. It was contended that the applicant had breached two bail conditions.

1. The applicant admits that he breached his bail by sending an email to a third party intending its content to be conveyed to Guy Ellis, a Crown witness. The conditions of his bail prohibited indirect contact with any Crown witness.

1. The second alleged breach of bail is more controversial. A bail condition obliged the applicant to reside at his bail address and not elsewhere. The applicant's movement log revealed that between 5 and 6 June 2013, he was absent from his bail address from 5:45pm to 9:45am with an approved bail supervisor. The applicant says that he understood that he was complying with the conditions of his bail which permitted him to be absent from the bail residence at any time provided he was in the company of one or more approved supervisors. Mitchell Cavanagh, the applicant's solicitor, states in an affidavit sworn 22 August 2013 that he provided the applicant with advice that a residential condition (unlike a curfew) did not prohibit the applicant from occasionally being absent from the bail address provided he was in the company of an approved supervisor.

1. I will return to these issues at a later stage, as my task is not to determine whether the applicant's bail should have been revoked, but as bail has been refused by the magistrate, my obligation is to decide whether there are exceptional circumstances that justify the grant of bail.

1. The applicant submits that the court would find that there are exceptional circumstances and would grant him bail on the proposed stringent conditions that include 11 persons providing security in the total amount of $755,000.00, reporting twice daily to police, residence conditions that bear some resemblance to home detention, and the maintenance of a movement log.

Relevant principle

1. Section 9C places a heavy onus on an applicant for a grant of bail on a charge of murder: see for example R v Connelly (Supreme Court of New South Wales, Hoeben J, 16 February 2006, unreported); R v Pirini (Supreme Court of New South Wales, McClellan CJ at CL, 8 September 2009, unreported); R v Pirini (Supreme Court of New South Wales, James J, 20 April 2010, unreported). Exceptional circumstances may arise from one or more factors either singularly or combined: see Pirini (8 September 2009); R vYoung [2006] NSWSC 1499; R v Jacobs [2008] NSWSC 417.

1. In R v Young [2006] NSWSC 1499 Johnson J said at [20].

"It seems to me that exceptional circumstances may be found in a case by the coincidence of a number of features. These can include features subjective to the particular applicant, features which bear upon the nature of the alleged offence and features which emphasise that, absent this particular test, the applicant is otherwise a person who will answer bail."

The Crown case

1. The Crown submits that the strength of its case has been enhanced by the report of Dr Duflou, a forensic pathologist, that was not before Davies J or Campbell J. The Crown argues that its case against the applicant is overwhelming. Mr Hamill SC who appeared for the applicant contended that the pathologist's report assists the applicant, who claims that he was acting in self-defence.

1. In a recorded conversation, the applicant told Queensland Police that he was in the deceased's unit when she approached him with a knife in her hands. He said that he overpowered her and that they both had hold of the knife when they fell to the ground and the knife went into the deceased.

1. Should self-defence be raised at the applicant's trial, the onus will be on the Crown to establish beyond reasonable doubt that the stabbing was not done by the applicant in self-defence. Having regard to the early stage of the proceedings it is inappropriate that analysis of the evidence is conducted in detail. It is sufficient to observe that when the circumstances relied upon by the Crown are viewed in combination, there is a strong likelihood that the Crown will satisfy a jury that the applicant was not acting in self-defence.

1. A brief summary of the principal circumstances relied upon by the Crown is as follows:

(i) the termination by the deceased of her relationship with the

applicant and her relocation to Sydney;

(ii) after she moved to Sydney, the deceased had conversations with a number of persons that the applicant had been "stalking" and "harassing" her;

(iii) the deceased told Geoffrey Allars on 13 June 2012 that the applicant had threatened that "he would destroy her";

(iv) the deceased's attendance at Dee Why Police Station on 5 July 2012 during which she told Constable Stephenson that the applicant "became more hostile and made threats to her at work", stating, "He was going to take me down and ruin my life";

(v) the evidence of the residents in the deceased's unit block of what they heard at approximately 9:15pm on 16 July 2012. Without detailing all of this evidence, Ms Faletoese recalled that she heard the female voice in the deceased's unit yell out, "Call the police". When asked by Ms Faletoese to open the door, the female voice said "I can't, I can't open the door just call the police." Ms Burrows recalled hearing a female screaming "Oh my God. Oh my God". Ms Burrows says that when Ms Faletoese asked for the door to be opened a male within the unit said, "we're ok, everything is ok." Ms Burrows said she heard muffled screams from the female and also heard the female say "I can't get to the door." Ms Burrows rang triple 0. It then fell silent within the unit;

(vi) the applicant's flight from the unit before police arrived;

(vii) the applicant's telephone call to his wife at 10:05pm in which he stated, "She's gone";

(viii) the booking by the applicant of the flight to Brisbane in the name of Guy Ellis, with the use of the credit card details provided by Mr Ellis;

(ix) the autopsy findings that the cause of death was multiple stab wounds. One stab wound was on the right chest extending through the right lung, right ventricle and septum of the heart. The second stab wound was through the left side of the neck, extending through the internal jugular vein through the larynx;

(x) the opinion expressed by Dr Duflou at par 16 of his report that "the constellation of injuries seen in this case are typical of an assailant causing stab wounds and incised wounds on the deceased, while the deceased is trying to fend off the assailant." Although Dr Duflou could not exclude the possibility that one or more of the injuries sustained by the deceased could have been self-inflicted during the altercation, he opined (at par 16):

"...the multiplicity of locations on the body, the presence of defensive injuries on both hands, and the severity of the injuries overall would be extremely unusual for self-infliction during a struggle. I have not seen any confirmed examples of injuries approaching the appearances of these in about 30 years of forensic pathology practice."

1. On the other hand, I do not overlook Dr Duflou's observations on the injuries to the applicant's hands which provide some support for the applicant's case. Dr Duflou writes (at par 15):

"...These injuries could reasonably be defensive injuries, sustained in a similar way to those on the deceased. They could however also have been sustained by [the applicant] while he was stabbing with the knife or by contact with the broken crockery. It is also possible that all or some of these injuries were sustained after the altercation."

1. The opinions expressed by Dr Duflou will not be considered by the jury in isolation but in combination with all of the other evidence in the case. The Crown also contends that there was some pre-planning by the applicant. The difficulty this argument faces is that upon the Crown case, the knife that was used to inflict the wounds upon the deceased, came from her home unit.

1. I conclude that the opinions expressed by Dr Duflou that were not before Davies J and Campbell J enhance the Crown case, but I do not conclude that the strength of the Crown case against the applicant is overwhelming.

The interests of the applicant

1. Section 32(1)(b) Bail Act provides that in making a determination as to a grant of bail, the court is to have regard to "the interests of the person, having regard only to:

(i) the period that the person may be obliged to spend in custody if bail is refused and the conditions under which the person would be held in custody, and

(ii) the needs of the person to be free to prepare for the person's appearance in court or to obtain legal advice or both, and

(iii) the needs of the person to be free for any lawful purpose not mentioned in subparagraph (ii)..."

1. The applicant's trial is listed to commence on 3 February 2014 and he has been in custody since 15 June 2013. The period of time that the applicant may be obliged to spend in custody if bail is refused is unexceptional. I take into account that the preparation for his trial may be made more difficult if he is not at liberty, but this is a matter that frequently faces persons charged with murder.

1. The applicant is presently self-represented in ongoing litigation before the Family Court of Australia, Brisbane Registry. The proceedings were listed for a conciliation conference on 23 August 2013. It appears that he has sought an adjournment. I give weight to the applicant's need to be at liberty to represent himself in the Family Court.

1. I take into account that the applicant has the offer of employment consulting to the pharmaceutical industry and his need to earn income to fund the legal representation of his choosing.

1. Section 32(1)(a) Bail Act obliges the court to consider the probability of whether or not the applicant will appear. He is charged with murder which carries with it a maximum penalty of imprisonment for life. Nevertheless, there is no suggestion that he is a flight risk. He has answered his bail when required and substantial security is offered by friends and work colleagues in the proposed bail conditions.

1. The court is required to consider the protection and welfare of the community having regard to those matters in s 32(1)(c)(i)-(vi) Bail Act. It is not likely that the applicant will commit any serious offences whilst on bail: s 32(c)(iv) Bail Act. He does not have a prior criminal record of any significance and as Davies J observed when granting bail on 11 October 2012, the circumstances of the present case arose out of a personal relationship.

1. I conclude that the applicant does not pose a threat to the community and is not a flight risk.

1. When considering the protection and welfare of the community, the court is also to have regard to:

"(ii) whether or not the person has failed, or has been arrested for an anticipated failure, to observe a reasonable bail condition previously imposed in respect of the offence, and

(iii) the likelihood of the person interfering with evidence, witnesses or jurors..." (s 32(c)(ii)-(iii) Bail Act).

1. I do not think for present purposes it is necessary to resolve whether the applicant was in breach of the bail granted by Campbell J (outlined at [7] above). It is plain the applicant did not think that he was in breach of his bail and was acting on legal advice. Mr Cavanagh's advice is understandable as there is a degree of tension between bail conditions 3 and 14. I do not consider that this matter reflects adversely on the applicant in any way.

1. I turn to the admitted breach of sending the email to Mr Chapman with the intention of it being passed on to Mr Ellis, a Crown witness. In his affidavit, Mr Cavanagh discloses the applicant's instructions which include that he understood from conversations with Mr Chapman that Mr Ellis wanted, if permitted, to speak to him. He wished to make an application to the court to vary bail to permit communication with Mr Ellis and the email was sent with the hope that he could support such an application by communicating his consent to his solicitor's email address.

1. I am unable to understand how the applicant would not have appreciated that he was in breach of his bail by sending this email. The requirement to strictly comply with bail conditions has been emphasised by the judges of this court. His bail had been previously revoked by Reiss LCM when he failed to comply with a bail condition and Campbell J told the applicant that any breach would be considered a serious matter and would raise questions as to whether he could be counted on to comply with bail conditions. As a result of the breach, he has been in custody for over two months.

1. Although the applicant breached his bail in this way, there is no evidence that he did so for a nefarious purpose. The evidence of Mr Ellis appears to be confined to the telephone call during which the applicant asked for his credit card details. Furthermore, the applicant has not breached his bail by committing a criminal offence or by failing to report to police. Given the extraordinarily rigorous nature of his bail conditions, his overall adherence to conditional bail has been good.

Decision

1. In all the circumstances, I am persuaded that the applicant has discharged the high onus of establishing exceptional circumstances arising from the combination of the following:

the finding that he poses no further threat to the community at this time;

he is not a flight risk;

his interest in being at liberty to represent himself in the Family Law proceedings; and,

the high stringency of the bail conditions.

Bail Conditions

1. In order to eliminate the uncertainty that surrounds the residence condition. I have added to the proposed bail conditions clause 3A which provides:

The accused is not to be absent from the bail address between the hours of 11pm and 7:45am for any reason apart from a medical emergency.

1. In order to make clause 13 consistent with the residence condition, the hours have been amended to between 7:45am and 11pm.

1. Bail is granted subject to the following conditions:

That the applicant enters into an agreement to observe the following

requirements as to his conduct while at liberty on bail:

1.   The Accused appear before the Supreme Court of New South Wales on 3 February 2014 and at such other dates and at such other times as may be required.

2.   The Accused reside at xxx xxx Avenue, Sans Souci in the State of New South Wales ("the bail address") and not elsewhere.

3A. The accused is not to be absent from the bail address between the hours of 11pm and 7.45am for any reason apart from a medical emergency.

3.   The accused enter into an agreement without security to forfeit the sum of one hundred thousand dollars ($100,000.00) if the accused fails to comply with his bail undertaking.

4.   Michael Leslie Mulvihill enter an agreement with security to forfeit the sum of three hundred thousand dollars ($300,000.00) if the accused fails to comply with his bail undertaking.

5.   Russell Parker and/or Donna Parker enter an agreement with security to forfeit the sum of two hundred and fifty thousand dollars ($250,000.00) if the accused fails to comply with his bail undertaking.

7.   Donna Parker and/or Russell Parker deposit the sum of one hundred thousand dollars ($100,000.00) and enter an agreement to forfeit the amount deposited if the accused fails to comply with his bail undertaking.

8.   Luke Foley deposit the sum of fifty thousand dollars ($50,000.00) and enter into an agreement to forfeit the amount deposited if the accused fails to comply with his bail undertaking.

9. Rakesh Raj enter into an agreement to forfeit the sum of fifteen thousand dollars ($15,000.00) if the accused fails to comply with his bail undertaking.

10. The following persons each enter into an agreement to forfeit the sum of ten thousand dollars ($10,000.00) if the accused fails to comply with his bail undertaking:

a. Paul Dolbel

b. Craig Watson

c. Mike Mckenna

d. Kelly Osbourne

11.   The Accused report to the Officer in Charge of the St George (Kogarah) Police Station between the hours of 8:00 am and 10.00am each day.

12.   The Accused report to the Officer in Charge of the St George (Kogarah) Police Station between the hours of 6:00 pm and 8:00 pm each day.

13.   The Accused not depart the bail residence for any purpose whatsoever between the hours of 7:45am and 11pm unless:

1. Travelling immediately to and from the reporting station by the most direct route,

OR

2. In the company of and under the immediate supervision of one or more of the following and only if they are contactable on the mobile service where specified and in possession of photographic identification:

a. Luke Foley (xxx xxx xxx)

b. Michael Hobbs (xxx xxx xxx),

c. Rakesh Raj (xxx xxx xxx)

d. Donna Parker (xxx xxx xxx)

e. Judy Weedon (xxx xxx xxx)f. Mathew Stiff (xxx xxx xxx)

g.   His legal representative from time to time as notified in writing to investigating Police and the Office of the Director of Public Prosecutions,

h. A qualified medical practitioner providing professional care to the accused,

13A. The Accused must be contactable on the landline service registered to the bail address (xxx xxx xxx ) at all times he is required to be at the bail address.

14. The accused must advise investigating Police and the Office of the Director of Public Prosecutions of the number and subscriber details (which may be in the name of another identified person) of the 'post paid' mobile service the accused will use whilst on bail within 24 hours of obtaining it.

15.   The Accused must not use or possess any sim card or handset for a mobile service other than that nominated pursuant to Order 14. The accused must not use any public telephones.

16.   The accused must be all times he is absent from the bail address contactable on mobile service provided in accordance with Order 14 and advise any member of the New South Wales Police Force who inquires:

a. His present location,

b. The identity of any person accompanying him,

c. The time he departed the bail address,

d. The time he will return to the bail address.

17.   The Accused maintain a daily movement and supervision log in the attached form and ensure that each person providing supervision signs the record as appropriate.

18.   The Accused provide a copy of the completed daily movement and supervision log to the Officer in Charge of the Police Station each Sunday evening on reporting as required that day.

19.   The Accused have no contact whatsoever directly or indirectly with any prosecution witness save Lyn Paisley or Theresa Mulvihill but only by communication with her solicitor in relation to family law proceedings or if communication is required in the presence of an officer of the Family Court or a person appointed by the Family Court for any process of mediation or conciliation.

20.   It is noted the Accused's solicitor previously surrendered the accused's passport to the Registrar of the Court and that the passport remains with the Supreme Court.

21.   The accused make no attempt to secure the return of his Australian passport or apply for another Australian passport or any other travel document.

22.   The Accused not approach any airport or point of international departure.

23.   The Accused not depart the Metropolitan Remand and Reception Centre, or such other facility where the Accused is in custody at the time bail is granted, unless in the company of one or more of the persons permitted to supervise the accused.

24.   The Accused must immediately surrender into custody at the nearest police station if the accused is unable to comply with his bail undertaking for any reason.

25.   The accused must be of good behaviour and not commit any offences.

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Decision last updated: 22 September 2014