Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 5)

1. [1]

   HIS HONOUR: Sef Gonzales was found guilty by a jury of the murder of his sister, his mother and his father in a trial that concluded in May 2004. He was sentenced by James J in September that year to three life sentences: R v Gonzales [2004] NSWSC 822. In November 2007, his appeal against the convictions and sentences was dismissed by the Court of Criminal Appeal: Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321.

2. [2]

   Thereafter, Mr Gonzales has made a series of applications to this Court pursuant to s 78 of the Crimes (Appeal and Review) Act 2001. The first application was made on 7 June 2017 and was dismissed by Adamson J on 29 May 2018: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2018] NSWSC 787. The second application was made on 8 August 2018 and was dismissed by McCallum J on 28 October 2019: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412. The third application was made on 18 November 2019. On 22 March 2021, Fagan J refused to consider or otherwise deal with the application: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW); (No 3) [2021] NSWSC 263. The fourth application was made on 16 July 2021 and dismissed by Lonergan J on 3 April 2023: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 4) [2023] NSWSC 323.

3. [3]

   Mr Gonzales has now made a fifth application to this Court which was filed on 29 September 2023. The application is said to be based on factual errors on the record, which resulted in the dismissal of a previous application, that have not been rectified in any previous proceedings. The factual errors are said to relate to evidence which gives rise to a doubt or question as to Mr Gonzales’ guilt and the key forensic evidence in the Crown’s circumstantial case. The unresolved doubts or questions are said by Mr Gonzales to satisfy s 79(2) of the Act, such that the whole case should be referred to the Court of Criminal Appeal pursuant to s 79(1)(b) of the Act.

4. [4]

   The facts and procedural history that give rise to this application are well known to Mr Gonzales. They are otherwise on the public record, published in the form of the sentencing remarks of James J, the judgment of the Court of Criminal Appeal and in the four previous applications made by Mr Gonzales pursuant to s 78 to which I have already referred. So too are the terms of s 79 of the Act. Accordingly, except to the extent necessary, I do not therefore propose to repeat what has already been said.

5. [5]

   Mr Gonzales makes submissions in support of the present application that go to two topics:

   1. (1)

      That there is a doubt as to evidence given in the trial by Dr Phillip Maynard to the effect that paint found on the sleeve of Mr Gonzales’ jumper was indistinguishable from blue graffiti paint used by the murderer at the crime scene (the blue paint issue).

   2. (2)

      That there was an absence of forensic evidence implicating Mr Gonzales in the murders, or evidence that he had disposed of any evidence or cleaned up following the murders, in circumstances where such evidence might be expected if he were the murderer (the clean-up/disposal evidence issue).

The blue paint issue

1. [6]

   The evidence at the trial was that words had been spray painted on an internal gyprock wall of the Gonzales’ house. The paint colour was blue. The police also detected a sample of blue paint in the fibres of a jumper owned by Mr Gonzales. The question arose as to whether the paint on the wall and on the jumper were one and the same.

2. [7]

   Mr Gonzales made the following submissions:

3. [8]

   The Attorney General responded as follows:

4. [9]

   Counsel for Mr Gonzales addressed the jury on this issue at the trial in these terms:

5. [10]

   McCallum J was asked to consider an issue concerning alleged differences in the paint in Gonzales (No 2) in the context of a complaint that his counsel at trial negligently failed to cross-examine Detectives Elliot and Gibbs. Her Honour said this:

6. [11]

   Reference to Dr Waight appears in the decision of Lonergan J in Gonzales (No 4):

7. [12]

   It will be evident that Mr Gonzales wishes to contend that the evidence before the jury did not conclusively establish that the paint found on the sleeve of his jumper was the very same paint used to write the graffiti on the wall of the house. Not only has he sought on a previous occasion to contend that the paint on the sleeve was planted there by the police, but he has also consistently maintained that chemical or physical analysis and inspection rises no higher than that the samples are indistinguishable. The evidence of Dr Maynard at trial appears clearly to have supported at least that conclusion:

8. [13]

   Nor did Mr Gonzales’ counsel at trial seek in cross-examination of Dr Maynard to displace that possibility. It was limited in its entirety to the following nine questions:

9. [14]

   It is trite to observe that the jury were not required to be certain that the paint on the wall and the paint on the sleeve of the jumper were the same. The true status of the paint on the sleeve was but one piece of circumstantial evidence to be considered along with all other pieces of circumstantial evidence in the trial: it was not an indispensable, intermediate aspect of the Crown’s circumstantial case that had to be established beyond reasonable doubt before Mr Gonzales could be convicted. For example, the jury may have considered that “indistinguishable” was an inadequate description for them to be satisfied that the paint on the sleeve and the paint on the wall were the same. In the same context, however, it was open to the jury to have been satisfied that whosoever committed the three murders also painted the graffiti on the wall, whatever view they may have formed about whether the paint on the wall and on the jumper were the same. The Crown’s circumstantial case had to be considered as a whole and not in a piecemeal fashion.

10. [15]

    All of the evidence touching this issue to which Mr Gonzales draws attention had been obtained and was available to be used at his trial. No issue arises now that was not also an issue for consideration then. The same issue has received attention in previous applications to this Court. It is not correct, as Mr Gonzales contends, that the so-called evidence is new evidence or that the jury and the trial judge were deprived of an opportunity to consider the whole of the evidence.

The clean-up/disposal evidence issue

1. [16]

   The burden of Mr Gonzales’ assertion in support of this issue is that there was an absence of forensic evidence in the Crown case that he had cleaned himself up or disposed of evidence, which he argues necessarily gives rise to a doubt or question as to his guilt. This submission takes strength from the way in which the Crown case proceeded at trial. However, to understand the conclusion to which I have come on this issue, it is necessary to refer to Mr Gonzales’ submissions on this application and to compare them with the previous consideration given to the forensic evidence by Adamson J in Gonzales (No 1) and McCallum J in Gonzales (No 2).

2. [17]

   Mr Gonzales submitted that, according to the Crown’s expert, Professor Hilton, the Gonzales family killings were “quite markedly bloody affairs” and due to the nature of the injuries sustained by the deceased, the quantity and distribution of shed blood would indicate a strong likelihood of a substantial transfer of blood from the victims to the murderer’s skin or clothing. That issue is not controversial: the Attorney has accepted in terms for the purposes of this application and otherwise more generally that there was a likelihood of blood transfer between the victims and the murderer. As McCallum J observed in Gonzales (No 2), that proposition arose from the nature of the murders and the crime scene, regardless of the further evidence of Professor Hilton.

3. [18]

   However, multiple witnesses observed Mr Gonzales in the immediate post event period and saw no blood on his skin or clothing. It therefore became the Crown case that Mr Gonzales would have had to clean or wash up a substantial amount of blood after the murders for him to have been the perpetrator. The Crown accepted that the limited timeframe within which Mr Gonzales could have done so and also disposed of a large amount of evidence at some location far removed from the house was about one hour.

4. [19]

   Mr Gonzales submitted that if he were the murderer, the washing of blood could only have occurred at the house because, according to the Crown case, he changed his clothes after each murder to avoid alarming the next victim by reason of his bloodied appearance. Mr Gonzales submitted that it was implicit in the Crown case that this would include the need to wash his skin. This could only have happened at the house because the Crown case was that Mr Gonzales remained there following each murder. The Crown case also disclosed that no blood was found in any of the family’s vehicles, suggesting that Mr Gonzales did not drive to another location to clean up.

5. [20]

   Mr Gonzales submitted that there was “absolutely” no evidence that he washed up blood or disposed of evidence. Submissions to this effect were robustly presented to the jury by his counsel at trial, arguing that if Mr Gonzales had undertaken such comprehensive tasks within a limited timeframe, the police would have uncovered evidence of this fact.

6. [21]

   The Attorney accepts that the Crown’s case theory required that some steps must have been taken by Mr Gonzales to either clean himself or dispose of evidence and clothing or both or to do some combination of these things so that his appearance was unremarkable when he met his friend Sam Dacillo, noting as well that the murder weapons were not located. The Attorney has argued that it does not follow that the Crown was required to prove that he had done so for the jury to convict him.

7. [22]

   However, the Attorney’s response to the present application is that Mr Gonzales’ submissions on this point have all been raised before and do not raise any new matters. In one sense, so much is apparent from Mr Gonzales’ extensively footnoted references in his written submission to what McCallum J had to say in Gonzales (No 2). These references were to some of the following paragraphs:

8. [23]

   Whether Mr Gonzales’ contentions are framed as a failure by the trial judge to give a Shepherd direction, or as a failure by the Crown at trial to prove that he had cleaned himself up at the house and disposed of evidence in a particular timeframe or some other combination of these related concepts, they have all been raised by him in previous applications and dealt with in a thorough and reasoned way. As the Attorney has pointed out in his submissions in this application, the related contention that Adamson J had made an exculpatory factual finding in Gonzales (No 1) excluding “all possibility of the applicant cleaning-up or disposing of evidence” was also considered by McCallum J in Gonzales (No 2). Her Honour reasoned, rightly in the Attorney’s submission, that Adamson J had not done so, and could not have done so.

9. [24]

   In this last respect, Mr Gonzales points once again to the statement of DSC Elliot whose evidence at trial included the following:

10. [25]

    Mr Gonzales contended that this statement was capable of establishing that “all possible” sites at which he might have disposed of evidence or otherwise removed blood from himself were investigated. However, the statement only related to an investigation of the crime scene. It did not, as the Attorney has emphasised, necessarily flow from the Crown case, as Mr Gonzales submits, that any clean-up could only have occurred within the home.

11. [26]

    As the Attorney has also pointed out, the more general issue central to Mr Gonzales’ contentions is that there was an absence of forensic evidence in the Crown case and an absence of evidence that he cleaned up or disposed of evidence, which he argues necessarily gives rise to a doubt or question as to his guilt. However, that contention was dealt with by Adamson J in Gonzales (No 1). It was also considered in Gonzales (No 2) in more than one context. It was also ventilated in the trial itself in that the absence of such evidence was emphasised by Mr Gonzales’ counsel on his behalf. For example:

12. [27]

    Finally, the Attorney made the following submissions:

13. [28]

    In whatever way one analyses Mr Gonzales’ contentions dealing with this issue, it is plain that his arguments have all previously been considered and dealt with comprehensively. I am unable to detect any variation of the way he seeks to address this issue that amounts to a new or fresh argument or that raises some as yet unassessed proposition to which further attention could or ought profitably be directed.

Conclusion

1. [29]

   The issues that Mr Gonzales seeks to agitate have been exhaustively explored and examined and re-examined in detail previously. They have been fully dealt with in one form or another in the proceedings giving rise to the convictions or in proceedings on appeal from those convictions or have previously been dealt with under one or more of Mr Gonzales’ earlier applications under Part 7 of the Act. I am not satisfied that there are special facts or special circumstances that justify the taking of further action: s 79(3) of the Act.