Application by Paul Mulvihill pursuant to Part 7 Crimes (Appeal and Review) Act 2001 (NSW)

1. [1]

   Paul Mulvihill was found guilty of the murder of Rachelle Yeo after a trial by jury, on 10 March 2014. He now applies pursuant to s 78 of the Crimes (Appeal and Review Act) 2001 (NSW) (“the Act”) for an inquiry into his conviction. The basis of his application is that in his trial, his then wife, Theresa Mulvihill, gave evidence as a prosecution witness without being advised of her right to object to giving evidence against him, pursuant to s 18 of the Evidence Act 1995 (NSW) (“Evidence Act”). He submits that the wrongful admission of his wife’s evidence in his trial, which would or may have been used to convict him, was a procedural irregularity in his trial.

Relevant statutory provisions

1. [2]

   Section 78(1) of the Act states:

2. [3]

   Section 79 of the Act states:

3. [4]

   Mr Mulvihill relies on the comments of Basten JA (with whom Bathurst CJ, Beazley P, Price J and Beech-Jones J agreed) in Sinkovich v Attorney-General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [27]-[32] that:

4. [5]

   He also relies on the statements of Heydon J (with whom the other Justices agreed) in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [134] that:

5. [6]

   Ms Mulvihill having given evidence in Mr Mulvihill’s trial was a ground of appeal in his appeal against his conviction to the Court of Criminal Appeal in 2016. The Court (Ward JA, Beech-Jones J and Fagan J) refused Mr Mulvihill leave to rely on the ground that: “The learned trial judge erred in not being satisfied that the wife of the appellant was aware of the effect of section 18 of the Evidence Act as it may apply to her”: Mulvihill v R [2016] NSWCCA 259.

6. [7]

   One of the bases on which leave was refused was that no objection was made during the trial, when Mr Mulvihill was represented by counsel. The Court stated that Ms Mulvihill’s evidence was “likely to have been of great assistance to the Crown”. The Court noted that no reference was made to s 18 of the Evidence Act during the trial, “nor was there any suggestion that Ms Mulvihill was objecting to, or even reticent about, giving evidence for the Crown against her husband” and before the jury was empanelled, counsel for Mr Mulvihill told the trial judge that Ms Mulvihill had provided a further statement to police which had just been served. Ms Mulvihill was described during the trial as “the estranged wife of the accused”. The Crown in the appeal raised an issue as to whether Ms Mulvihill was “required to give evidence” as it did not appear that she was subpoenaed to give evidence in the trial. The Court proceeded on the basis that Ms Mulvihill was required to give evidence when called to enter the witness box even if not the subject of the subpoena. The Court doubted whether non-compliance with s 18 of the Evidence Act made Ms Mulvihill’s evidence inadmissible in the trial. The Court held that because the issue was not raised at trial, there was no means of ascertaining whether Ms Mulvihill was not aware of her right to object to giving evidence and there was no basis for the Court to conclude that Ms Mulvihill would have objected to giving evidence and the trial judge would have excused her from giving evidence.

7. [8]

   Section 18 of the Evidence Act provides:

8. [9]

   Mr Mulvihill now seeks to rely on evidence which he contends demonstrates that his then wife did not wish to give evidence against him in his trial and was not aware of her right to object to giving evidence pursuant to s 18 of the Evidence Act. In an affidavit of 24 March 2024 at [22] Paul Mulvihill stated that after he was sentenced, his wife told him that she never wanted to be involved in the trial but was told she had to give evidence and said she felt pressured. He said in early 2020 Ms Mulvihill provided him with a copy of the subpoena she had received from the Office of the Director of Public Prosecutions (NSW) (ODPP) in relation to attending his trial, which information was not available at the time of his appeal.

9. [10]

   In an affidavit of 12 September 2024 at [7] Theresa Marshall (formerly Mulvihill) stated that she gave evidence at Paul Mulvihill’s trial after receiving a subpoena to do so and said:

10. [11]

    Mr Mulvihill also seeks to rely on an unsigned email from his wife’s email address to his solicitor, dated 26 October 2016 which stated:

11. [12]

    Mr Mulvihill also seeks to rely on a hearsay statement in an affidavit of his daughter Morgan Mulvihill dated 12 September 2024 that she once heard her mother say “I never wanted to be involved in the first place” and her statement that she was aware her mother gave evidence in her father’s trial and “I could tell it caused problems between them which caused Mum a lot of stress and anxiety.” He also seeks to rely on an affidavit of his daughter Tyler Mulvihill of 12 September 2024 that she was aware her mother gave evidence in her father’s trial and could tell it caused problems between them.

12. [13]

    In written submissions counsel for the Attorney-General for New South Wales submitted that had Ms Mulvihill objected to giving evidence in her husband’s trial, pursuant to s 18 of the Evidence Act, it was unlikely that the trial judge would have upheld her objection because of the importance of the evidence, the fact that none of the evidence could be adduced from other sources, Ms Mulvihill’s willingness to assist the police in the investigation and apparent lack of reluctance in giving evidence, and that the relationship between Mr and Ms Mulvihill was at the time of the trial considered to have been finished. Counsel submitted that had the trial judge upheld an objection by Ms Mulvihill, if she had objected to giving evidence, the Crown could have tendered her statement pursuant to s 65 of the Evidence Act on the basis that she was an unavailable witness.

The evidence of Theresa Mulvihill in the trial

1. [14]

   Theresa Mulvihill gave evidence in Mr Mulvihill’s trial on 19 and 20 February 2014. She said in the course of her evidence that she considered her marriage over as at 17 July 2012 and she commenced proceedings in the Family Court on 30 July 2012. She said in December 2013 she and Mr Mulvihill were getting along quite well and he asked her to not tell the police about a particular piece of evidence (seeing a white plastic chain in his bag in July 2012).

2. [15]

   In summary, Ms Mulvihill’s evidence in the trial was as follows.

3. [16]

   In January 2012 she became aware of sexual messages between Mr Mulvihill and Rachelle Yeo on his phone. A few nights later she confronted Mr Mulvihill with the messages. She and he then had a phone conversation with Ms Yeo. Ms Mulvihill asked Mr Mulvihill to leave and by February he had moved into a unit.

4. [17]

   She asked him to stop communicating with Ms Yeo. She was aware they continued to be in contact by emails and text messages.

5. [18]

   In May 2012 Mr Mulvihill moved back into the family home. Ms Mulvihill slept in her daughter’s bedroom. Mr Mulvihill slept in the main bedroom.

6. [19]

   Ms Mulvihill contacted Ms Yeo’s mother, who asked Mr Mulvihill to stop seeing Rachelle Yeo. Ms Mulvihill said Mr Mulvihill showed her an email he sent to Ms Yeo telling her they had to cease contact, but she did not believe they would cease contact.

7. [20]

   Ms Mulvihill said in May 2012 she and Mr Mulvihill were trying to keep their family together, including by attending counselling, but they ended the counselling because it was not working, and Mr Mulvihill did not tolerate what she said in the counselling sessions.

8. [21]

   He asked her to continue the marriage. In June they had an argument during which he became angry and threw things around the walk-in wardrobe. In late June 2012 Mr Mulvihill accused Ms Mulvihill of having an affair and she stopped speaking to him unless it was necessary.

9. [22]

   On Thursday 12 July she collected Mr Mulvihill from the airport. He said he wanted the relationship to continue. She said she was “pretty much done”. He walked away and arrived home later in the evening, angry. She was in her daughter’s bedroom. Mr Mulvihill came in and put her pillow over her head and held it there. She pushed the pillow away and said to him “You’re making us all scared for you”. He said “It’s not you, it’s her”. On the next day, Friday 13 July, Ms Mulvihill told Mr Mulvihill she could not continue like that, she was going to leave.

10. [23]

    On Monday 16 July Mr Mulvihill told her he was flying to Melbourne that afternoon. On Friday 13 July she had seen Mr Mulvihill’s bag by the front door and went through it, and found a Big W ticket for a hoodie, and a white plastic chain.

11. [24]

    At about 10 PM on 16 July Mr Mulvihill rang Ms Mulvihill and said “She’s gone”. She asked “Rachelle?” and he said “Yes”. She asked was he not in Melbourne and he said he was in Sydney.

12. [25]

    On Tuesday 17 July 2012 around 7 AM Mr Mulvihill called Ms Mulvihill and said he was at the airport and there were police everywhere. She said she saw “it” on the news. He said “I know”. He said he was trying to get on a flight but there were a lot of police around so he was not going to stay there.

13. [26]

    She agreed in cross-examination that Mr Mulvihill was not welcome back at her home, and she would not support any bail application, and had not done so.

14. [27]

    Given Ms Mulvihill’s evidence about when she considered her marriage with Mr Mulvihill to be over, although she said in her evidence on 19 February 2014 that she was married to Mr Mulvihill, then if she had objected to giving evidence in the trial, there must be a question whether the trial judge would not have required her to give evidence on the basis of the likelihood that her giving evidence would cause harm to her relationship with Mr Mulvihill and the nature and extent of that harm would outweigh the desirability of having her evidence given.

15. [28]

    Nevertheless, I will consider the other evidence in the trial and put out of consideration Theresa Mulvihill’s evidence.

Ms Yeo’s relationship with Mr Mulvihill

1. [29]

   Katherine (Kathy) Yeo, Rachelle Yeo’s mother, gave evidence as follows, in summary. In January 2012 Rachelle Yeo told her about her relationship with Mr Mulvihill. On 18 April 2012 Kathy Yeo received a message on Facebook from Theresa Mulvihill, as a result of which she called Rachelle. During the conversation Rachelle told her that Paul Mulvihill was becoming too possessive. Rachelle Yeo gave her mother Mr Mulvihill’s phone number and agreed that her mother could call him. Kathy Yeo rang Paul Mulvihill and said he should give Rachelle Yeo time to pursue her career, to leave her alone for six months to a year, and to stop calling her. He said “Your daughter wouldn’t like that”. Kathy Yeo told Rachelle Yeo about the conversation, and Rachelle thanked her for reconfirming that that was what she wanted.

2. [30]

   Rachelle Yeo moved to Sydney to work at the beginning of May. In June 2012 she moved to a unit in Pitt Road at Curl Curl. Around the end of May 2012, after Rachelle Yeo secured the unit, she told her mother that Paul Mulvihill had asked her where her new unit was, she told him she did not want to tell him and he became really annoyed with her. Kathy Yeo said Rachelle Yeo never told Paul Mulvihill or her office where her unit was.

3. [31]

   Rachelle Yeo told Kathy Yeo she went to Melbourne for business and to meet a friend and Paul Mulvihill followed her to Melbourne, when he had no need to be there. She had herself made a silent guest at the hotel but Paul Mulvihill asked about her at the hotel, so they moved her to another hotel.

4. [32]

   After the Melbourne trip Rachelle Yeo called Kathy Yeo and said it was “really creepy” that Paul Mulvihill put a picture of a velveteen rabbit with a peace sign on it on her desk. Kathy Yeo said The Velveteen Rabbit was one of Rachelle Yeo’s favourite books. Rachelle Yeo told her mother she was going to take it to Human Resources. Rachelle Yeo told her mother she had spoken to Human Resources in the middle of June and the head of Human Resources said he would speak to Paul Mulvihill and when Mr Mulvihill was in the Sydney office Rachelle Yeo could work at home.

5. [33]

   Rachelle Yeo told her mother that Paul Mulvihill had called her friend or friends at work and told her or them that Rachelle Yeo had had an affair with a friend’s husband, and she had had to explain the situation to her friends.

6. [34]

   In July 2012 Rachelle Yeo went to police for another purpose and told her mother she was going to, and did, tell the police about Paul Mulvihill stalking her, following her to Melbourne and calling her friends.

7. [35]

   Rachelle Yeo called her on 11 July 2012, really upset, and said she was at work at Ryde and she saw Paul Mulvihill there, and she shook and trembled and had a “huge panic feeling”. Rachelle Yeo went home and worked at home the rest of that day and the next day, Thursday 12 July, until Paul Mulvihill went back to Brisbane.

8. [36]

   Kathy Yeo said Rachelle Yeo called her and said she had an appointment with a psychologist, as her mother had recommended.

9. [37]

   At about 4 AM on 17 July 2012 police came to Kathy Yeo’s house and told her that Rachelle had died.

10. [38]

    Roger Yeo, Rachelle Yeo’s father, gave evidence in summary as follows. In January 2012 in a telephone call, Rachelle told him about having an affair with Paul Mulvihill. In late February or early March 2012 Rachelle told Mr Yeo that she wanted to try to end the relationship with Paul Mulvihill. She found him to be a strong personality, she was attracted to him but he was possessive. In early March 2012 Rachelle told Mr Yeo that she wanted to end the relationship and was not sure how to go about it. In late May 2012 Rachelle told Mr Yeo that she had met Paul Mulvihill at a conference and he had become angry about her trying to end the relationship. In early June 2012 Rachelle had returned from Melbourne and told her father that she had been followed by Paul Mulvihill and harassed, and was frightened and anxious. She told her father she had received numerous calls and SMSs and was not responding to them.

11. [39]

    Mr Yeo said there was an occasion when he and Kathy Yeo were in the car together talking with Rachelle on speakerphone and Rachelle said she had come out of her office in Sydney and seen Mr Mulvihill in the café, had returned to her office immediately, informed her manager and was sent home to work from home. That conversation occurred on Thursday 12 July. Rachelle had told Mr Yeo that an arrangement had been put in place at work to notify her if Mr Mulvihill was coming to Sydney and she would be advised and permitted to work from home.

12. [40]

    Mr Yeo said he advised Rachelle that she should try to keep her address and whereabouts private. He said he and his wife and Rachelle talked about security in her unit in early July. Rachelle told Mr Yeo she was anxious and worried that the relationship had gone badly.

13. [41]

    Mr Yeo said after the police came to his home on the morning of 17 July he went to Rachelle’s unit on 21 July to remove her possessions. His wife Kathy found a notebook among Rachelle’s things. It contained notes in handwriting which he identified as Rachelle’s. Pages from the notebook were tendered and contained the following:

14. [42]

    Mr Yeo said that when he was going through Rachelle’s possessions on 21 July 2012 he noticed there was a kitchen knife missing from the kitchen, which he had used when he had stayed in his daughter’s unit the weekend before.

15. [43]

    In cross-examination Mr Yeo said he did not remember whether in a conversation with Rachelle in February 2012 she told him that she thought Paul Mulvihill was possessive. He agreed that in early June Rachelle told him she had received numerous calls and SMSs and did not respond, and told him they were blocked calls.

16. [44]

    Mr Yeo said Rachelle’s unit building was “a walk up unit” but had good security in the unit and double locks on the doors.

17. [45]

    Kevin Yeo, Rachelle Yeo’s brother, gave evidence in summary as follows. In January 2012 he received a call from Rachelle in which she was crying and told him she had been having an affair with a man from work.

18. [46]

    On the weekend of 7 and 8 July 2012, Mr Yeo, his wife and child stayed at Rachelle Yeo’s unit in Curl Curl with their parents. He observed a “Global chef knife” in Rachelle Yeo’s kitchen, which was a bit bigger than one of the same brand he owned. After Rachelle Yeo’s death Mr Yeo went with his parents to her unit and he noticed that the knife he had seen just over a week before was not there.

19. [47]

    Renee Ward was the person to whom Rachelle Yeo reported at work. Ms Ward also worked with Paul Mulvihill.

20. [48]

    Ms Ward said Rachelle Yeo began working with her in Sydney on 30 April 2012. The day before Ms Yeo moved from Queensland to New South Wales Paul Mulvihill called Ms Ward and told her that he had been involved with Ms Yeo romantically. He told Ms Ward he was very angry that his relationship with Ms Yeo had ended. He said he was left with nothing, because his relationship with Ms Yeo had broken down, and his relationship with his wife had broken down, so he was very angry at Ms Yeo.

21. [49]

    Ms Yeo told Ms Ward on 13 June 2012 that she had been in a relationship with Paul Mulvihill, which had ended earlier in the year. Ms Yeo was teary when she approached Ms Ward to begin that conversation. Ms Yeo said Mr Mulvihill had been making repeated unwanted attempts to make ongoing contact with her which she had tried to ignore. She said the day before he had spoken to her in the work car park and threatened to ruin her career in their joint workplace by showing the Human Resources Department some sexual messages she had sent to him during the relationship and alleging she had harassed him. She said she was going to meet with the Human Resources Department the next day to tell them what had gone on.

22. [50]

    Ms Yeo told Ms Ward that a week before she had been in Melbourne for a meeting and found out that Mr Mulvihill was to be in Melbourne so she changed her location to the other hotel the company used. She asked to be an unmarked guest at the hotel. She was told by the hotel staff a man had been trying repeatedly to get in contact with her.

23. [51]

    Ms Yeo told Ms Ward she thought Mr Mulvihill may be watching her whereabouts through a friend in Melbourne.

24. [52]

    Ms Ward said she told Ms Yeo she would find out when Mr Mulvihill would be in the Sydney office, and when he was, Ms Yeo could work from home, or if she had to be in the office Ms Ward would keep her informed of Mr Mulvihill’s whereabouts. Those plans were put into place.

25. [53]

    After mid-June 2012 Ms Yeo told Ms Ward that there were still anonymous calls to her mobile, which she did not answer.

26. [54]

    Ms Ward said on 27 June 2012 Mr Mulvihill was at the Sydney office to attend a meeting. During the afternoon she saw Mr Mulvihill at Ms Yeo’s desk. He put what appeared to be a piece of paper and a Post-it note on her desk. Ms Ward went to see what Mr Mulvihill had put on the desk but did not know what to look for. Later she spoke to Ms Yeo and told her Mr Mulvihill had been at her desk and left something on it. Ms Yeo showed her a Post-it note on a piece of paper, with a peace sign and a rabbit, both of which had meaning during their relationship. Ms Yeo did not know if it was a sign that Mr Mulvihill was sorry for having threatened her. Later that day Ms Yeo expressed concern to Ms Ward that Mr Mulvihill would not stop trying to contact her.

27. [55]

    On 3 July 2012 Ms Yeo told Ms Ward that she had been told that a friend of hers in the Brisbane office had received an anonymous phone call saying that Ms Yeo had had an affair with her husband, another work colleague in the Brisbane office.

28. [56]

    On 4 July Ms Ward escorted Ms Yeo to her car because Mr Mulvihill was in the office and she was scared of him. On 5 July Ms Yeo worked from home because Mr Mulvihill was in the Sydney office.

29. [57]

    Ms Yeo went to the police, after discussion with managers at work. A police officer told her that the unlisted calls she had been receiving could be traced if needed.

30. [58]

    On 11 July 2012 Mr Mulvihill was in the Sydney office for a meeting. When the meeting finished early Ms Ward walked Ms Yeo to her car so she could resume working from home. Mr Mulvihill appeared at the desk area a number of times. One time he asked Ms Ward where Ms Yeo was. She told him Ms Yeo was working from home.

31. [59]

    In the evening of 11 July 2012 Mr Mulvihill called her at about 7:30PM and said he was still stressed over his breakup with Ms Yeo. He was very angry. Mr Mulvihill and Ms Yeo had been told by the Human Resources Department to stay away from each other, because Ms Yeo had reported to Human Resources a threat made by Mr Mulvihill. Mr Mulvihill said to Ms Ward “I don’t know what the fuck Rachelle has been saying, but she should know that what she said is being reported back to me”.

32. [60]

    On 12 July Ms Ward told Ms Yeo about Mr Mulvihill’s anger in the phone call the previous evening. Ms Ward said Ms Yeo was very shaken and ended the call. She called back later to say she was feeling anxiety about Mr Mulvihill’s conduct and was arranging to see a counsellor about her anxiety.

Evidence of friends of Ms Yeo’s in the trial

1. [61]

   A friend of Ms Yeo’s, Damien Keenan, gave evidence that on 27 June 2012. Ms Yeo told him that she had had an affair with a work colleague, that that relationship had finished and he had begun to stalk her.

2. [62]

   Robert Hunt, the person Ms Yeo was in a relationship with at the time of her death, gave evidence that Ms Yeo told him of her prior relationship with Mr Mulvihill and told him that she was scared of Mr Mulvihill and would take time off work to avoid running into him at work. She said there was a time they were both in Melbourne and she asked the person at the hotel she was staying at that if anyone was to call and ask for her, would they tell her. He said one night when he was at Ms Yeo’s unit he observed her checking the door locks and looking through the peephole in the door.

3. [63]

   Benjamin Favaloro, a friend of Ms Yeo’s, gave evidence that she told him that Mr Mulvihill had been in Sydney for work, he was trying to contact her, she had gone to some lengths to avoid him and ignored his phone calls and then she received a call from a meeting room which, when she answered the phone, was from Mr Mulvihill. He said he was in a meeting room and she had to come and meet him. She said she went thinking it would give her some kind of closure. She said he became angry and aggressive and threatened her and said she would regret what she had done to him or she would pay for what she had done to him. She said after that she went to speak to Human Resources, after which procedures were put into place at work, so she would not have to be there at the same time as Mr Mulvihill, and people could walk her to her car so she would not be alone. Mr Favaloro said Ms Yeo was upset and quite distressed when she told him that.

4. [64]

   Two friends of Ms Yeo’s, Kim Blowers and Sarah Arkins, gave evidence of reports by Ms Yeo to each of them of interactions with Paul Mulvihill when he was angry with Ms Yeo, including when she would not tell him her new address and he threw a computer.

5. [65]

   Ryan Atkins, the Human Resources Manager, gave evidence that on 13 June 2012 Ms Yeo called him and they arranged to meet on 14 June at the office, which they did. Ms Yeo told Mr Atkins that she had been involved in a relationship with Paul Mulvihill, which had officially ended in May 2012, that he had been ringing her on her mobile, emailing and texting her on a constant basis and she said he wanted to continue the relationship and she had made it clear that the relationship was over. Ms Yeo told Mr Atkins that the day before, 13 June, Mr Mulvihill had “texted” and asked her to have a talk and then telephoned her at her desk and asked to meet, and they met in the café in the office building. Ms Yeo told Mr Atkins that Mr Mulvihill had wanted to keep up the relationship and she had told him she wanted to end it. Ms Yeo told Mr Atkins that later that afternoon Mr Mulvihill rang her and that he would go to the Human Resources department and tell them that she had been contacting him by way of her work phone and laptop. Ms Yeo told Mr Atkins that she had told Mr Mulvihill that he was also contacting her on the telephone and she would also contact Human Resources. She said that Mr Mulvihill said “I don’t care. I want to take you down and make you suffer”. Mr Atkins said the discussion with Ms Yeo was about her concern that Mr Mulvihill was going to “slight her in some way”. She told him she wanted the harassment to stop. Ms Yeo also told Mr Atkins about having been in Melbourne and discovered that she and Mr Mulvihill were in the same hotel and she arranged to change hotels.

Mr Mulvihill’s movements on 16 July before he went to Ms Yeo’s unit

1. [66]

   CCTV footage on 16 July showed Mr Mulvihill entering his work car park at 16:34 and leaving five minutes later. Then he checked into the Marriott Hotel nearby at 16:42, wearing a business shirt, black pants and black shoes as he checked in. At 19:12 Mr Mulvihill was seen coming into the front doors of the reception area wearing a black top with a hood, khaki pants and white runners with black stripes. A minute or so later he was seen walking towards the bar, wearing a maroon shirt and the same khaki pants and runners. At 19:32 Mr Mulvihill was seen returning from the direction of the bar area and going towards his room. At 19:33 Mr Mulvihill was seen to come out of the area where his room was. At 19:44 he walked towards his room wearing the same clothes. At 19:52 Mr Mulvihill was seen leaving the fire escape exit, wearing a black top with a white hood, khaki pants and the white runners.

2. [67]

   At 21:57 Mr Mulvihill was seen without the hoodie and without shoes checking the fire door and then running away. At 21:58 Mr Mulvihill was seen entering the foyer of the hotel, still barefoot. At 22:03 he was seen to leave the hotel by the fire exit, having changed clothes and carrying bags. At 12:08 AM on 17 July he walked into a hotel near Sydney Airport.

Mr Mulvihill’s behaviour before attending Ms Yeo’s unit

1. [68]

   There were agreed facts in the trial that Mr Mulvihill had searched Facebook for Ms Yeo, between 25 May and 3 July 2002, had searched some of her friends, and had conducted searches of Google Maps at Curl Curl, the suburb where Ms Yeo was living at the time of her death.

Evidence from Ms Yeo’s neighbours about the night of 16 July 2012

1. [69]

   Andrew Smythe, who lived in unit 3, across the hall from Ms Yeo’s unit 4, gave evidence that on 16 July 2012 at 6 PM he made a phone call, and during the phone call he walked out onto the balcony of his apartment, which was next to the balcony of unit 4. When he walked out onto the balcony there was a man on the block next door, staring up at what Mr Smythe thought was his apartment. The man was wearing a dark jumper like a black hoodie. He did not see the man’s face. The man turned around and disappeared around the front of the house towards the road.

2. [70]

   Several of the neighbours from Ms Yeo’s apartment building gave evidence of what they heard on the night of 16 July around 9 or 9:15 PM.

3. [71]

   Hosanna Faletoese, who lived in the unit above Ms Yeo’s with Peter Gualtieri, heard a loud female scream while she was in her unit. She walked around the building to find out where the scream had come from. She heard another scream, then two people arguing, a male and female voice, from the unit below hers. She went to the door of unit 4. She heard arguing, fighting, more screaming by a woman, and noises like banging. She knocked on the door of the unit. She heard the woman screaming, banging noises, glass breaking, furniture moving and thumping noises. She told Mr Gualtieri to call the police. She asked was everything all right. A woman’s voice said to call the police. Ms Faletoese asked her to open the door. The woman replied she could not open the door, “he won’t let me open the door”. Ms Faletoese said it sounded as if the woman was behind the door and was struggling. She kept banging on the door. The male voice said “everything is okay. You don’t need to call the police”. Then the screams lessened and it became quiet in the unit.

4. [72]

   Deanne Burrows lived in unit 11 in Ms Yeo’s building. At about 9:15 PM she heard a female scream and some banging and crashing noises, like furniture being thrown around and a lot of banging of walls. She went to unit 4, where her neighbour was knocking on the door and saying to open the door. Ms Burrows heard the woman still screaming and a man saying “everything’s okay” in an aggressive voice. She could hear both the man and woman right on the other side of the door, and the woman saying “I can’t get to the door”, begging for help, crying and distressed. Ms Burrows called the police. It fell silent in the unit as she was calling the police, and while she was on the phone to the police.

5. [73]

   Lee-Anne Rawlinson lived in unit 5 with her partner Rob Newcombe. At about 9 PM she could hear some noises, verbal fighting and shouting and banging. She could not differentiate if the banging was coming from inside unit 4 or it was Ms Faletoese banging on the door.

6. [74]

   Robert Newcombe, Ms Rawlinson’s partner, gave evidence he could hear arguing in a neighbouring unit. He went down to outside unit 4, where he could hear male and female voices, the woman extremely distressed. The woman said “yes, call the police. I need help”. He said there were noises, including broken glass. He knocked on the door, asking them to open it. After it went quiet he heard a woman rasping for air, a gurgling noise from the other side of the door on the floor.

7. [75]

   Dean Jackman lived in unit 1 with his mother Amra Kubur. At about 9:10 PM he heard banging on the door above and a woman saying “I’ve called the police, let me in”. He went to break the door down but police arrived. Ms Kubur said she heard a voice like a little girl’s voice calling “help police help”, and heard struggling or furniture moving or a door trying to open. A neighbour went and knocked on the door. Ms Kubur heard lots of screaming and then like someone was stopping the woman from screaming and someone was stopping her from opening the door. Something crashed like a huge glass or mirror or TV and then there was silence. Two other people in the building also heard a woman’s voice, one describing it as “hysterical” and the other “quite agitated”.

8. [76]

   A neighbour, Darryl Byron, who lived in a street which crossed Pitt Road in which Ms Yeo’s building was, was outside his house at about 9 PM. He heard loud arguing, then he heard a male voice and female voice, both screaming really loudly. He said the male voice sounded angry, in a rage, very upset, with aggression in his voice, over the woman’s voice. He heard the woman say “leave me alone”, then the man burst into a rage again, after which it went quiet and he could hear muffled sounds.

Evidence at the crime scene

1. [77]

   Crime scene officer Anthea Windsor gave evidence that there was no security on the front door of Ms Yeo’s unit building. She gave evidence of a large volume of blood on the floor and walls of Ms Yeo’s apartment. There were bloodstained shoe impressions heading towards the balcony and on the balcony. The shoe impressions were different from the shoes worn by police officers and ambulance workers who attended the apartment. There was blood staining on the balcony tiles and the door frame of the balcony. There was a fingerprint impression on the balcony railing, which was the accused’s print in blood.

2. [78]

   At a view conducted during the trial the officer in charge informed the jury that there was blood found on the grass directly underneath the balcony of unit 4 (Ms Yeo’s apartment). Ms Windsor said that the distance from the top of the handrail of the balcony to the ground was 3.61 meters.

Mr Mulvihill’s conduct after the alleged killing

1. [79]

   There were agreed facts in the trial as follows. At 6:20 AM on Tuesday 17 July Mr Mulvihill checked out of the hotel near the airport which he had checked into just after midnight. He returned the hire car he had hired the previous day to the rental agency at the airport. At about 6:25 AM he attended the Qantas Domestic Airport at Sydney and re-booked a flight to Brisbane he had originally booked for Wednesday 18 July, to depart at 7:05 AM on 17 July. He failed to board that flight and returned to the car hire agency and asked for the return of his hire car. As it had already been re-hired, he hired a second car and drove north. At 9:48 AM he telephoned a colleague and told him he had left his wallet at home and asked if he could use the colleague’s credit card. He used the colleague’s credit card details to book and pay for a flight from Newcastle to Brisbane. At 11:35 AM he departed Newcastle on the flight to Brisbane. He was arrested on 17 July after disembarking from the flight at Brisbane Airport.

Mr Mulvihill’s evidence

1. [80]

   Mr Mulvihill gave the following evidence. On 16 July he flew from Brisbane to Sydney, although he told his wife he was going to Melbourne. He said when he arrived in the office car park he saw Ms Yeo’s car and he saw on the passenger seat a letter with her address. He said he did want to know where she lived and that was one of the reasons why he looked in her car. He said he had been attempting to call her and he desperately wanted to talk to her and thought the only way that would happen was if he could go and see her. He said he needed some closure because of the way the relationship had ended so suddenly, and to “get some things off [his] chest” that he wanted to say to her about what had happened. Then he went and checked in at the Marriott Hotel at about 4:43 PM. At about 6 PM he drove to North Curl Curl because he wanted to see Ms Yeo. He was not sure of the address he had seen on the document in Ms Yeo’s car and he looked at a couple of properties in Pitt Road before deciding on 103. He said he stood at the front and had a bit of a look, then went and sat in his car for maybe five minutes, thinking to wait and see if she arrived home. By then it was past 6:30 PM, maybe twenty to seven, so he drove back to the hotel.

2. [81]

   He arrived back at the Marriott Hotel at 7:13 PM. He was wearing khaki cargo type pants, a long-sleeved maroon T-shirt and a black hoodie, which he had bought from a Big W store at the Gold Coast, one night when he was waiting for his daughters to finish aerobics near the Big W store. He said he left the hotel with the hood up, because if Ms Yeo made an issue at work the next day about his going to her place he was going to deny it.

3. [82]

   He said at 7:52 PM he left the hotel, went out through the fire stairs and drove back to North Curl Curl. He said he arrived at the address at 8:40 or 8:45 PM. He walked down the driveway of 103 Pitt Road to the car park and back up the other side and could not see Ms Yeo’s car there. He sat in his car for 5 or 10 minutes and then noticed Ms Yeo’s car turn into the driveway. He walked over and stood on the footpath outside 103, to the side, so he could see down the pathway. He saw Ms Yeo coming up the path and he saw her before she saw him. He said Ms Yeo looked up and saw him when she was about halfway up the block, or close to the entry to her unit, and he had started walking down slightly towards the building. When they made eye contact Ms Yeo said “what the fuck are you doing here” and he said “Rachelle, I just need to talk to you”. She said, “Paul, you shouldn’t be here. I’ve got nothing to say to you. I don’t want you here”. He asked her to give him five minutes, said he needed to talk to her to “get some things off [his] chest”. They were at the letterbox, Ms Yeo was getting some mail out of the letterbox and Mr Mulvihill kept asking her to give him a couple of minutes. Ms Yeo said “no Paul, no I don’t want you here”. When he persisted, she said, “you’ve got two minutes, and you must go”.

4. [83]

   He said Ms Yeo then turned around and started walking back towards the unit building. On the way he asked her how she liked living there and she said it was nice and quiet. They stopped at the landing for unit 4. He was standing behind her and could hear she was unlocking the door. She opened the door and walked in. He followed her and let the door close behind him. Ms Yeo put something down towards the end of the hallway and went into the kitchen area and Mr Mulvihill went into the middle of the living room. They talked about her new job and a conference about to occur. She asked him what he wanted to say. He talked about how the relationship had ended so suddenly. He said Ms Yeo told him he had been making her anxious, when he yelled at her and threatened her. He said that he had told her he was going to send emails and text messages but did not do so. He admitted to her that he had called her friend. She said that he had threatened to damage her reputation and she was worried, having started a new job, that it would affect her position at work. He told her she was the “most self-centred person I’ve ever met”.

5. [84]

   He said as he finished that sentence, Ms Yeo slapped him very hard with her right hand across the side of his face. He said he grabbed her by the scruff of the neck, held his fists under her chin and looked into her eyes and said “I don’t know who the fuck you think you are, but don’t ever do that to me again”. As he did that he was slightly pushing her back and at the end of the sentence he pushed her very firmly into the corner of the kitchen. When she turned around she confronted him with a very large stainless steel knife in her hand raised to about shoulder height. She said “get the fuck out of here”. He said he could see, out of the corner of his eye, some sort of utensil block or knife block so he reached for it to try to grab something to defend himself, but did not grab anything, so he turned his attention back to Ms Yeo and had his hands raised about shoulder height and said “Rachelle, don’t be fucking stupid, put that down”.

6. [85]

   He said Ms Yeo lashed out at him towards his right chest area and he defended himself with his right hand and the knife caught him on the bottom of the right palm. He said it happened so quickly, he could not turn around and go because Ms Yeo had this “massive weapon”. When she slashed at him and it caught his hand he thought he was in trouble because he did not have anything to hit her with or to get the knife out of her hand. He said they were then in the living area and he kept saying to her in a raised voice “put it away, don’t be stupid, put it down” and she kept saying “get the fuck away from me, get out of here”. He said when he first got into the living area Ms Yeo lunged at him again with the knife, stepped forward and swung at him. He moved out of the way and it did not hit him and he could see in her eyes she was angry and he thought he was in trouble.

7. [86]

   So he kept backing back into the middle of the living room and she kept advancing to him with the knife still in her right hand, and she lunged at him a third time and he made the decision there and then to lunge, and with his left hand grabbed her right wrist and was not letting go. He also grabbed her with his right hand around the scruff of the neck and had hold of her jacket and kept saying to her “put it down, let it go, don’t be stupid, put it down”. And she was yelling at him, saying “fucking let me go, let me go”. But he could not let her hand go. He said she was trying to push him, he was pushing her and she was also trying to pull her hand away from him but he was not going to let her go because he thought if he did, she was so angry that if her right hand came free with the knife, it was coming at him. So he maintained his grip on her jacket, and on her right wrist.

8. [87]

   He said they were bouncing off the walls in the living room, the end of the hallway, the wall that separates the kitchen and hallway and he was trying to push her up against the wall to try to release her grip and kept on saying to her “fucking let it go”. She was yelling and saying “let me go, get away from me”. He was pushing her and hitting her up against the wall and she was trying to get away from him, pull away, and sort of pushed him away. He said he was struggling to control her because he had been sick and physically was not in great shape, whereas she was very fit and strong.

9. [88]

   During the struggle, because his left hand was clutching around her wrist he did reach for the knife once with his right hand but got a small nick somewhere on his hand. He said the knife was so sharp, so he knew that was not going to be a way to get the knife off her. He said next he was up against a small wall, and Ms Yeo was facing him in front of him. He still had hold of her right hand with his left hand and hold of her jacket by the scruff of the neck, and he shoved “really hard as much as [he] could”.

10. [89]

    He said as he pushed Ms Yeo she tripped over something on the ground or her own feet and as she was falling to the ground she reached out with her left hand and grabbed his jacket but they were going to the ground and there was not anything that was going to stop them, “just a free fall to the ground”. He said Ms Yeo toppled and he was going with her, because she had reached out with her left hand and grabbed his right arm or shoulder and was pulling him with her.

11. [90]

    He said “we fell, she fell”. He said Ms Yeo did not fall straight on her back. As she went down her body turned slightly to the left, and he was falling on top of her, but to avoid that direct contact he did his best to fall on his right hand side just to her left. He said he did not want to fall on top of her, he tried to avoid her and hit the ground.

12. [91]

    He said the knife was still in her right hand with his left hand on it. He knew that the knife hit her somewhere in the right hand side. He said he could feel that it had hit something hard and it did not feel like it was on the ground. He said Ms Yeo did not drop the knife.

13. [92]

    He said as soon as they hit the ground the knife was not inside her, it was out, but he noticed there was blood on her. He could not recall seeing the knife actually inside her jacket, in her. He said “so the knife has struck her there and then it’s come out”. He said he saw blood on the knife when they were back on the ground and the knife was in her hand with his hand still attached to it. He thought the knife entered Ms Yeo’s body as they hit the ground.

14. [93]

    He said he could hear people banging on the door and saying to open the door. He said Ms Yeo was yelling out that she could not get to the door and asked the people outside to call the police. He said he and Ms Yeo were wrestling on the ground and he got himself on top of her and said to the people at the door something to the effect of “we’ll be okay, we are all right, don’t need the police”. He said he said that to calm Ms Yeo down. He felt when he was on top of her that he had control of the situation, even though she had the knife in her hand; he had her pinned down, she was not going to move, and he was going to try and defuse the situation.

15. [94]

    He said he got to his knees and knelt over her abdomen. The knife was still in her right hand and he had her right hand pinned to the ground with his left hand. He used his forearm against her chest, sometimes it went to her neck, her jaw and her face, like a move to have her pinned down, and he repeatedly asked her to let go of the knife. He said she was not saying anything to him, she was communicating with the people at the door, and he could not get the knife out of her hand. He was not prepared to move away from her and stand up while she still had the knife in her hand.

16. [95]

    He said he punched her in the face, which stunned her and she let go of the knife. He said the knife was very quickly in his right hand. He stood up and threw the knife on the ground, away from where they were wrestling, and people were still bashing at the door. He said when he stood up, their backs were to the kitchen and they were in the middle of the living room, though not far from the kitchen.

17. [96]

    He said he started to go to the door, but realised there was a two lock system on the door, and if he was going to open the door he needed both hands to open the door. But as he reached for it he noticed Ms Yeo sort of sat up, got to her hands and knees and she was going for the knife. When he saw her do that, he immediately tackled her. He noticed a significant amount of blood coming through on her jacket, that she was bleeding somewhere around the chest area.

18. [97]

    He said he tackled her onto the ground and he grabbed the knife in his right hand just before Ms Yeo got hold of the knife. He said they never got back on their feet from there. They were joined and he had the knife in his right hand. Ms Yeo grabbed onto his right hand with her left hand, holding his right wrist with her left hand. He said Ms Yeo was trying to pry open his hands to get the knife. He used the knife to hit her on her right hand, so that she would not use her right hand to try to get the knife from him. He deliberately struck her on the hand a couple of times. Then he “sort of forced her down” so she could not use her right hand to grab the knife.

19. [98]

    He said he was trying to get up off the ground out of the confrontation, he was pushing down on Ms Yeo to use as a leverage so he could stand up and the knife was in his right hand and the blade was between their two upper body areas. He fell forward into her, and she turned, “you could see the knife just going towards her face”, she turned to her right and turned away. Then he saw blood coming out of the side of her neck, just pouring out of the side of the neck and they both looked at each other. He grabbed one of her hands and said to put her hand on it and he put her hand over it. He said the blood was coming through her hand and he was squatting or standing over her, and people were bashing at the door and said that police were on the way. He said the blood was coming out of Ms Yeo’s neck and he could not do anything about it. She was holding her hand and looking at him and he was looking at her and he just panicked. He panicked because he knew he should not have been there. He had it in his mind that for some reason he could not open the front door, or he did not want to go out through the front door. He saw the balcony and walked to the balcony door with the knife in his hand.

20. [99]

    He said he went to the balcony and as he straddled the balcony he turned around and was facing inside the unit. Ms Yeo had got to her knees, at least, and had her hand up to her neck. He lowered himself over the balcony and dropped down onto the grass strip in the driveway between two cars. The knife was in his hand. He went to his car and got into the car. He was shaking. He had the knife in his hand. He had blood on a hand. He turned the car on and drove, with the knife on his lap. Not too far away there was a reserve or golf course or swampy area and he stopped the car, got out and threw the knife into the swamp bush. He got a bit lost, but found his way back to Pittwater Road and headed back to the Marriott Hotel. He felt sick and was overheating so as he was driving he took off his jumper and shoes and socks.

21. [100]

    On the way back to the hotel he stopped on the side of the road and threw his jumper in a waste bin.

22. [101]

    He went back to the hotel, went to check if the fire door was open. It was closed and he went around through the foyer into his room. He was shaking and in shock. He had a shower. He got changed and got back in the car and just started driving. He rang his wife Theresa and said words to the effect “she has gone out of our lives”, by which he meant that after what just happened he would never have anything to do with Ms Yeo again.

23. [102]

    He said he drove to Watsons Bay and sat in the car on the side of the road at the cliff of Watsons Bay. He was on the phone to his wife. He told her he was going to be with his mother and father. He thought of driving home but he was drained and tired and thought it best to get a hotel near the airport, and did. He said he woke up early and heard on the news that someone had been found deceased in the unit at North Curl Curl. He said at that point he just wanted to go home. He changed his flight, but when some policemen walked past him at the airport he panicked again and thought he would get a car and drive all the way home. As he was driving he was falling asleep and knew he could not make it all the way home. So he spoke to his friend, obtained his credit card details, and booked a flight from Newcastle to Brisbane. He said he knew he was going to be arrested.

24. [103]

    He denied taking a white chain to Ms Yeo’s unit or ever seeing a white chain. However, since on the medical evidence in the Crown case the white chain was not used to inflict any injuries on Ms Yeo, I put the white chain aside.

25. [104]

    Mr Mulvihill agreed that he made internet searches for Ms Yeo on Facebook on 25 May. He said he was just looking up to see what she was doing. He accepted that he searched for real estate at Curl Curl. He said that Ms Yeo had told him she was going to look around Freshwater Beach for somewhere to live and she had told him a price range she was looking in, and he realised that Curl Curl is close to Freshwater Beach, so he was looking at units for rent in Curl Curl in Ms Yeo’s price range. He agreed that on 3 June 2012 he searched the Novotel St Kilda; he said he did that to obtain their phone number and rang them to see if Ms Yeo was booked in that weekend. He agreed he did a number of internet searches for friends of Ms Yeo’s, and said that was just seeing what she was up to. He agreed he had searched for Ms Yeo’s father’s name and phone number, thinking he might call her parents, and he searched for Gold Coast marathons, which he knew Ms Yeo and her friends were running in, and he looked up the results.

26. [105]

    Mr Mulvihill denied that he went to Ms Yeo’s unit on 16 July with the intent to kill her and said he never formed the intention to kill her at any time.

27. [106]

    In cross-examination, Mr Mulvihill said that he threw his hoodie in a rubbish bin because it had blood all over it. He said he threw his shoes and shirt and pants in a bin at Watsons Bay, though he could not say why. He said at that stage he did not know that Ms Yeo was deceased. He said he threw his pants away because there was blood on them. The shirt did not have blood on it; it was just with the other clothes he threw away.

The evidence of doctors/experts

1. [107]

   Dr Rianie Janse Van Vuuren performed the autopsy on Ms Yeo’s body on 17 July 2012. Dr Van Vuuren said that Ms Yeo’s death was directly the result of multiple stab wounds, particularly two stab wounds. There were three stab or incision wounds on Ms Yeo’s body. One was on the outside of her right breast, through the ribs, through the right lung and through the heart. The knife of which she was shown a photograph, with a 21 cm blade, could have caused that wound. The direction of the wound was horizontal and it was 18 cm long. There was also an incision underneath the right armpit, cut from the top to the bottom with a skin flap. There was a stab wound on the left side of the neck, which extended through the neck muscle, through the internal jugular vein and through the larynx, but above the vocal cords.

2. [108]

   There were self-defence injuries on both of Ms Yeo’s hands, and multiple bruises and abrasions on her hands and head consistent with blunt force injuries, which could include being hit with a fist. There was a small incision on the outside of Ms Yeo’s right foot. There were small injuries on the thumb, index and middle finger of her left hand, caused by a sharp object. Dr Van Vuuren said they could be knife injuries or they could have been caused by crockery (there being evidence of broken crockery in the apartment). There were shards of crockery on Ms Yeo’s right hand and sleeve. There was an incision on the thumb and palm of her right hand which was quite deep, went almost from the edge of the thumb down halfway into the palm, and could have been caused by a knife. There were two incisions on the top of Ms Yeo’s right hand near her knuckles, which went through the soft tissue and into the ligament.

3. [109]

   Of the injuries to Ms Yeo’s right and left hands, which she described as self-defence injuries, Dr Van Vuuren said when somebody is attacked by a knife or a sharp object one grabs the knife, like a reflex, to try to protect one’s body. The incision on the palm of the left hand was probably from grabbing the knife, and the other one was trying to ward off the knife, which caused the incision on the top of the hand and knuckles.

4. [110]

   Dr Van Vuuren formed the view that the neck wound occurred first, because there was aspirated blood in Ms Yeo’s lungs and blood swallowed as well. They indicated that she lived for a little while after the neck wound. Dr Van Vuuren thought she would not have lived long after the chest wound. She expressed the opinion that had she received medical attention earlier than she did and had only the neck wound and not the chest wound occurred, Ms Yeo could have survived. If the chest wound had occurred, but not the neck wound, and Ms Yeo had received medical attention immediately she thought it unlikely Ms Yeo could have survived that. The chances of surviving the two wounds were not very good. Dr Van Vuuren could not say what time passed between the infliction of the two wounds. She said a person would be able to speak and shout and move about after the chest wound.

5. [111]

   Dr Van Vuuren said the chest wound and neck wound would have involved moderate force being applied. She said the skin is most resistant but if the tip of the knife is very sharp one does not need much force to put a knife in. Once a knife goes through skin, then it is quite easy to penetrate the body.

6. [112]

   Dr Van Vuuren said she saw no injuries that were consistent with the white chain.

7. [113]

   Professor Johan Duflou was a professor in forensic pathology and the Clinical Director of the Department of Forensic Medicine in Sydney, meaning he was in charge of the organisation which conducts post-mortems. He estimated he had done in excess of 1000 autopsies involving sharp force injuries. He began working as a forensic pathologist in South Africa, where he performed up to 500 autopsies a year, at a time when stabbing deaths were very common.

8. [114]

   Professor Duflou commented on injuries to Mr Mulvihill which were photographed and examined by another doctor. Mr Mulvihill had told police that an abrasion to his elbow had occurred on 13 July and an injury on one of his right fingers was also an old injury. Professor Duflou expressed the opinion that the injuries sustained by Mr Mulvihill were trivial, especially in relation to those sustained by Ms Yeo. He said they could reasonably, or some of them, have been defensive injuries. He said the injury to the palm of his right hand, which appeared to be a superficial incision or a cut, could be the result of grabbing onto a knife, probably the sharp edge. He agreed that if someone has a knife in his hand and is using it in a stabbing motion, the hand can be cut by the top of the knife. If the knife handle is slippery from blood on the knife handle or on the hand of the person wielding the knife, then the hand can slip over the blade of the knife and cause injury to the palm of the hand. He said there were a number of small injuries to the fingers as well, which could potentially be the result of a defensive-type injury, as well as with the hand held while the knife was in the process of stabbing someone. They could also potentially be a result of punching someone or something or just general interactions during a violent confrontation. He agreed that some of the injuries could have occurred when Mr Mulvihill climbed over the balcony and jumped to the ground when leaving the unit.

9. [115]

   Professor Duflou expressed the opinion that it was very unlikely that all of the injuries sustained by the deceased were inflicted while she was holding the knife. He said that the constellation of injuries she had, including on her hands, were typical when an assailant causes stab wounds and incised wounds on the deceased while the deceased is trying to fend off the assailant.

10. [116]

    He said he did not exclude the possibility that the deceased was holding the handle of the knife for at least part of the altercation but there was no autopsy evidence to support that. He said what he meant was that her injuries were typical of another person having stabbed her as opposed to her hand being forced and the knife penetrating the skin. He said the positioning of the injuries on two sides of the body, and injuries to the hands as well, were “very, very, very” unusual for the situation where another person’s hand was holding the hand of the deceased. He said “I think I’ve seen a very large number of stab wounds over the years and I have never seen that as a proven example. I have certainly seen people ending being stabbed while they hold the knife. That absolutely does on occasions happen. But when you see those types of injuries you tend to see a single injury and not in multiple occasions on the body.”

11. [117]

    He said in his report “The multiplicity of locations on the body, the presence of defensive injuries on both hands and the severity of the injuries overall it would be extremely unusual for self-infliction during struggle”. By self-infliction he included the deceased holding the knife, the assailant’s hand being on the deceased’s hand and injuring her. He said that is not to say it cannot conceivably happen, but he has not seen that before.

12. [118]

    He was asked which of the neck and chest wounds occurred first. He said “The track of the stab wound to the neck being surrounded by blood and aspiration of blood into both lungs and swallowing of blood into the stomach suggest at least a period of survival”. He could not say how long. He said stab wounds in the neck are certainly very dangerous. He said the most dangerous structure penetrated in Ms Yeo’s neck was the jugular vein. On its own a person need not die of that and need not become incapacitated, but can at any time. He said there was a suggestion that there was an air embolism from the neck wound, but there was also a very significant stab wound to the heart, which on its own could have resulted in frothing of the blood within the heart, which was the indicator suggesting the air embolism. He said there probably was an air embolism and more likely than not it would have come from the neck.

13. [119]

    Professor Duflou was of the opinion that very likely the stab wound to the neck preceded the stab wound to the heart. He said either of the two major stab wounds had a high potential to be fatal. He said there was an indeterminate period of survival, which may have been many minutes, after the neck wound. He said at some stage close to the time of death and after a loss of a large amount of blood from the neck wound it appears likely the deceased sustained an air embolism from the stab wound in the neck.

14. [120]

    Professor Duflou was asked to comment about a report by Dr Hilton, in which Dr Hilton said “The disparate anatomical sites, that is of the two stab wounds to Ms Yeo, make it unlikely that both penetrations took place by Ms Yeo falling on the knife during the course of a struggle”. Professor Duflou agreed with that. He said that would be extremely unlikely, almost implausible.

15. [121]

    Professor Duflou said had Ms Yeo received early medical attention she could have survived the neck wound, although it would not have been certain. He said the stab wound through the heart was dangerous, but people can and do survive stab wounds to the heart, especially with rapid treatment. He said whichever wound came first, had Ms Yeo received medical attention she may have lived. He said they were both very serious wounds and the consequences would be at least additive.

16. [122]

    In cross examination, Professor Duflou agreed that the injuries to the deceased and accused were consistent with a struggle, and the injuries sustained by Mr Mulvihill may have been an indication of a very significant struggle.

17. [123]

    Professor Duflou said his preferred view was that the neck wound occurred first, followed by the chest wound, but he did not exclude as a less likely possibility the chest wound occurred first, followed by the neck wound.

18. [124]

    He said there were no marks on Ms Yeo’s neck typical of strangulation or consistent with the white chain.

19. [125]

    Professor John Hilton gave evidence in Mr Mulvihill’s case. He was formerly the Director of Forensic Medicine for the State Health Department and was at the time of giving evidence a consultant in forensic medicine and held roles at the University of Sydney and University of Western Sydney. Dr Hilton said he could not say precisely the order in which the injuries were sustained, but agreed it was a possibility that the chest wound could have occurred first during the struggle, followed by a further struggle, in a very short time the neck wound, followed by a movement and then a collapse of the deceased. He agreed that frothy blood in Ms Yeo’s heart indicated an air embolism, which he thought was highly unlikely from the chest wound and was more likely to have come from the neck wound.

20. [126]

    He found no evidence of strangulation or any marks consistent with the chain on the photographs of the deceased.

21. [127]

    He said he could not exclude the possibility that during the struggle the knife may at some stage have been in the possession of the deceased. He said the evidence that Mr Mulvihill sustained a cut to the edge of his right hand at some stage may indicate that he was not in possession of the knife at that time.

22. [128]

    In cross-examination Dr Hilton agreed that from the photograph of the cut on Mr Mulvihill’s right palm the cut was extremely superficial and was not one continuum but had two components separated by intact skin.

23. [129]

    He agreed with Professor Duflou that his preferred view was that the neck wound occurred first.

24. [130]

    He confirmed what was in his report, that the disparate anatomical sites made it unlikely that both penetrations took place by Ms Yeo falling on the knife during the course of a struggle.

25. [131]

    In re-examination he was asked did he mean that both of the wounds made it unlikely that both the penetrating wounds were as a result of falling on the knife. He said “one penetrating wound from one fall is possible, feasible. Two penetrating wounds from one fall is not possible”. When asked about two wounds by one fall, he said “two wounds from two falls…the probability are a somewhat unlikely scenario in the first place”.

26. [132]

    He agreed one wound and one fall is possible. When asked whether either of the wounds could have been sustained by the deceased falling onto a knife he said “I think one is unlikely, two is much more unlikely.”

Conclusion

1. [133]

   The non-compliance with s 18 of the Evidence Act in respect of Theresa Mulvihill’s evidence was a procedural irregularity in the trial. It is impossible to determine now whether at the time of the trial Ms Mulvihill would have objected to giving evidence and what decision the trial judge would have made had that occurred. The non-compliance with s 18 does not raise any question about the integrity of Ms Mulvihill’s evidence, such as for example, that it was fabricated. The only part of her evidence that was really challenged, about the white plastic chain, was supported by independent evidence that the chain was found in the front of Ms Yeo’s unit block with bloodstains on it. The chain did not have any significance in the Crown case as the cause of any injury to Ms Yeo.

2. [134]

   Leaving aside Ms Mulvihill’s evidence, the rest of the evidence overwhelmingly satisfies me beyond reasonable doubt of the applicant’s guilt of the murder of Ms Yeo. That is, the cumulative effect of the evidence of the relationship having deteriorated, Mr Mulvihill being unhappy that the relationship had ended, his tracking of Ms Yeo while she tried to avoid him, his behaviour on 16 July including his change of clothing, wearing a “hoodie” and leaving the hotel by the fire exit, his behaviour after his attendance at Ms Yeo’s unit demonstrating his consciousness of his guilt, the implausibility of his account of how Ms Yeo was stabbed and its not being supported by the medical evidence. Even if the jury, or any of them, took into account Ms Mulvihill’s evidence, it did not deprive the applicant of a chance of acquittal, as the remaining evidence demonstrates his guilt beyond reasonable doubt. Therefore there is no question or doubt about his guilt and conviction. Therefore his application for an enquiry into his conviction is refused and dismissed.

Orders

1. [135]

   The application by Paul Mulvihill pursuant to s78 of the Crimes (Appeal and Review) Act 2001 (NSW) is refused.