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Supreme Court 10 February 2026

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

[2026] NSWSC 12

Homicide

Citation: Application by Paul Mulvihill pursuant to Part 7 Crimes (Appeal and Review) Act 2001 (NSW) [2026] NSWSC 12
Court: Supreme Court of New South Wales — Common Law Division
Date: 10 February 2026
Judge(s): Sweeney J

Background

Paul Mulvihill was convicted of murder by a jury on 10 March 2014 following the killing of the victim, Rachelle Yeo. At trial, the prosecution called his then wife, Theresa Mulvihill, as a witness. Her evidence was described by the Court of Criminal Appeal as "likely to have been of great assistance to the Crown." At the time of the trial, the couple were described as estranged — Ms Mulvihill had considered her marriage over since July 2012 and had commenced Family Court proceedings — but they were not yet divorced and she remained Mr Mulvihill's spouse.

Crucially, at no point during the trial was Ms Mulvihill informed of her right under section 18 of the Evidence Act 1995 (NSW) to object to giving evidence as a prosecution witness against her spouse. Section 18(4) imposes a positive obligation on the court to satisfy itself that a person who may have the right to object is aware of the effect of that provision. No reference to section 18 was made during the trial, no objection was taken by Mr Mulvihill's trial counsel, and there was no apparent indication at trial that Ms Mulvihill was reluctant to testify.

Mr Mulvihill appealed his conviction to the Court of Criminal Appeal in 2016, raising the section 18 issue as a ground. Leave to rely on that ground was refused, in significant part because no objection had been raised at trial by defence counsel and because the Court could not determine whether Ms Mulvihill was unaware of her rights or would have objected if informed. Mr Mulvihill now applies to the Supreme Court under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction, relying on fresh evidence that he says was not available at the time of his appeal and which, he contends, demonstrates that his wife did not wish to give evidence against him and was not aware of her right to object.

  • Whether the applicant has established a "doubt or question" as to his guilt, or as to part of the evidence in the case, sufficient to enliven the court's power under section 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW) to direct an inquiry or refer the matter to the Court of Criminal Appeal.

  • Whether the failure to inform Ms Mulvihill of her right to object under section 18 of the Evidence Act 1995 (NSW) constituted a procedural irregularity capable of raising a doubt or question about the conviction.

  • Whether the fresh material — including affidavits from the applicant, his former wife (now Theresa Marshall), his daughters, and an unsigned email — was sufficient to overcome the findings of the Court of Criminal Appeal in Mulvihill v R [2016] NSWCCA 259.

  • Whether the matter had already been "fully dealt with" in prior appeal proceedings such that the court should decline to consider the application under section 79(3), and if so, whether there were "special facts or special circumstances" justifying further action.

  • If Ms Mulvihill had been informed of her rights and had objected, whether the trial judge would likely have upheld the objection under the balancing exercise required by section 18(6) and (7) of the Evidence Act.

Decision

The judgment text provided is truncated, so the full reasoning and ultimate outcome of Sweeney J's decision are not available from the material reviewed. However, the decision plainly engaged with the competing positions in detail.

Mr Mulvihill's case rested on the proposition — drawn from Sinkovich v Attorney-General of New South Wales and Eastman v Director of Public Prosecutions (ACT) — that a procedural defect at trial (here, the court's failure to discharge its obligation under section 18(4) of the Evidence Act to ensure the witness knew of her right to object) can give rise to a "doubt or question" about guilt within the meaning of section 79(2). He supported this with fresh material: an affidavit from his former wife stating her involvement was "very traumatic," caused "irreparable damage" to the marriage, and implied reluctance; an unsigned email from her email address asserting she was never told she could decline to give evidence and would have done so if informed; his own affidavit recounting what she told him after sentencing; and affidavits from his daughters about the stress it caused their mother.

The Attorney-General's submissions pushed back on multiple fronts. First, even if Ms Mulvihill had objected, the trial judge would likely have required her to give evidence in any event, given the seriousness of the charge (murder), the importance and irreplaceability of her evidence, her apparent willingness to cooperate with police, and the fact the marriage was effectively over at the time of trial — all factors relevant to the section 18(6)–(7) balancing exercise. Second, even if the objection had been upheld, the Crown could potentially have tendered Ms Mulvihill's statement under section 65 of the Evidence Act as the evidence of an unavailable witness. These arguments, if accepted, would significantly diminish the practical impact of the procedural failure, potentially preventing it from raising a sufficient doubt or question about the conviction.

The Court of Criminal Appeal in 2016 had already expressed doubt about whether non-compliance with section 18 rendered Ms Mulvihill's evidence inadmissible and had found no basis to conclude she would have objected. The fresh material before Sweeney J was intended to fill that evidentiary gap — but its weight was contestable. The unsigned email was not formally verified; the affidavit evidence came years after the trial; and the hearsay statements from the applicant's daughters were of limited probative value.

Due to the truncation of the judgment, it is not possible to report with certainty whether Sweeney J directed an inquiry, referred the case to the Court of Criminal Appeal, or refused the application. Readers should consult the full judgment on NSW Caselaw for the outcome.

Orders Made

  • The specific orders made by Sweeney J are not available from the truncated text provided. The court was considering whether to direct an inquiry under section 79(1)(a), refer the matter to the Court of Criminal Appeal under section 79(1)(b), or refuse the application.

Key Takeaways

  • Section 18(4) of the Evidence Act 1995 (NSW) imposes an active judicial duty: The Supreme Court confirmed that the trial judge bears an obligation to satisfy themselves that a witness who may be the spouse of a defendant is aware of their right to object under section 18. This duty exists independently of whether trial counsel raises the issue or the witness appears reluctant, and a failure to discharge it can form the basis of a post-conviction review application, even years after the original trial.

  • Under Part 7 of the Crimes (Appeal and Review) Act 2001, fresh evidence can reopen issues previously considered on appeal: Although the Court of Criminal Appeal in 2016 had found it could not determine whether Ms Mulvihill was unaware of her rights or would have objected, the applicant sought to overcome that finding through new affidavit material. The Supreme Court acknowledged that Part 7 applications can supplement the evidentiary record, though it retained discretion to refuse to deal with matters already addressed on appeal absent "special facts or special circumstances."

  • Even where a section 18 breach is established, its practical impact may be limited: The ultimate question under section 18(6) and (7) is whether the harm from giving evidence outweighs the desirability of having the evidence given. In the context of a murder trial involving important, irreplaceable evidence from an estranged spouse who had cooperated with police, the balance may well have favoured compelling the evidence. The Attorney-General's alternative argument (that the statement could have been tendered under section 65 if the witness became "unavailable") further narrowed the practical consequences of the breach.

  • Significant weight was placed on the quality and timeliness of the fresh material: The evidence relied upon included an unsigned email, an affidavit made a decade after trial, and hearsay statements from family members. The Supreme Court scrutinised both the authenticity and weight of this material, and its limitations bore on the overall strength of the application.

  • Consistent with Sinkovich and Eastman, the statutory threshold for Part 7 relief requires a "doubt or question," not proof of innocence: Procedural irregularities capable of bearing on the accuracy of a jury's verdict can satisfy this standard.