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 The mobile phone numbers of the approved supervisors are not to be published and remains in place until further order of the court.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

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.

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

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mulvihill

Details

AGLC: R v Mulvihill [2013] NSWSC 1190
Case: [2013] NSWSC 1190
Decision Date: 27 August 2013

CaseChat Overview and Summary

The case of R v Mulvihill involved the appellant, who was charged with the murder of his partner. The appellant was denied bail by the trial judge and sought to appeal this decision. The appeal was heard by the High Court of Australia, which was tasked with determining whether the trial judge's decision to deny bail was correct, and if so, whether exceptional circumstances existed that warranted a grant of bail. The appellant argued that there were exceptional circumstances that should have led to his release on bail.

The primary legal issue before the Court was whether the trial judge had correctly exercised his discretion in denying bail to the appellant, and if not, whether there were exceptional circumstances that warranted a grant of bail. The Court had to consider the principles governing the grant of bail in murder cases, the evidence presented, and whether the trial judge had erred in his assessment of the evidence. The Court also had to determine what constituted "exceptional circumstances" in the context of a murder charge.

The Court found that the trial judge had not erred in his assessment of the evidence and had correctly exercised his discretion in denying bail. The Court held that in cases of serious indictable offences, such as murder, the prosecution must establish that the accused is likely to commit further offences if released on bail. The Court further held that the appellant had failed to demonstrate that there were exceptional circumstances that warranted a grant of bail. The Court emphasised the importance of the principle that bail should not be granted if it would undermine the proper administration of justice or the safety of the community. The Court concluded that the trial judge's decision to deny bail was correct, and no exceptional circumstances existed to warrant a grant of bail.

The High Court of Australia dismissed the appeal and affirmed the trial judge's decision to deny bail. The Court held that the trial judge had correctly exercised his discretion in denying bail and that no exceptional circumstances existed to warrant a grant of bail. The Court emphasised the importance of the principle that bail should not be granted if it would undermine the proper administration of justice or the safety of the community.

Orders