Gonzales v R

1. [1]

   LEEMING JA: Mr Christian Mauricio Gonzales (which is sometimes spelt “Gonzalez”) seeks leave to appeal from his conviction in the District Court constituted by a judge and jury of one count of causing grievous bodily harm to Mr Jose Velasquez with intent to do so, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The indictment charged an alternative count of recklessly causing grievous bodily harm to Mr Velasquez in company, contrary to s 35(1) of the Crimes Act.

2. [2]

   The trial took place over eight days in November 2021, and following the jury returning a verdict of guilty, the District Court imposed sentence of imprisonment for 6 years with a non-parole period of 3 years and 9 months. The sentence was backdated to commence on 22 September 2020 to allow for time in custody. The non-parole period expires imminently, on 21 June 2024. Mr Gonzales was also convicted of an offence contrary to s 10 of the Public Health Act 2010 (NSW) for permitting more than five visitors to his home (the offence took place early in the COVID-19 pandemic), but no further penalty was imposed.

3. [3]

   Mr Gonzales makes no application for leave to appeal against the sentence, but it is clear from the above that he needs, and seeks, a substantial extension of time. The most important consideration in determining whether to grant an extension of time to permit his appeal against conviction to proceed is the strength or otherwise of that appeal. Accordingly, the hearing proceeded on the basis that Mr Gonzales was heard in full on the substance of his appeal.

4. [4]

   Although in this Court Mr Gonzales was self-represented, at trial in the District Court in late 2021 he was represented by a public defender, Ms Madeleine Avenell SC, who was retained by LY Lawyers following a grant of Legal Aid.

5. [5]

   The sole ground of appeal is, “There has been a miscarriage of justice: self-defence”. In handwritten documents supplied by Mr Gonzales when seeking an extension of time in which to appeal, he said that “my legal team led me to believe they were going to use duress and self-defence as the basis of my defence, but they failed to do so”, and that it was “my contention that these omissions led to an unfair trial”. Another document provided at the same time, and once again in Mr Gonzales’ handwriting, stated that his original solicitor from the same firm spent time with him to thoroughly understand his case, and that his solicitor’s intention was “for me to plead ‘duress’”. However, that solicitor left the law firm and his replacement, Mr Ashraf Jawas, was said to be “not as thorough”, “not invested in pursuing justice for me” and “rushed our meetings”. Mr Gonzales also said that because his own English was quite poor at the time, it was difficult to liaise with Mr Jawas. Mr Gonzales said:

6. [6]

   In light of one aspect of Mr Gonzales’ complaint, it is best to address his proficiency in spoken English immediately. Mr Gonzales speaks English as a second language. Nonetheless, he has lived in Australia for many years and his spoken English is fluent, although not flawless. A Spanish interpreter was present in the courtroom, and available to assist Mr Gonzales if he so chose. Immediately following appearances being taken, there was the following exchange:

7. [7]

   It was not necessary to call upon the services of the interpreter.

8. [8]

   In order to advance his claim that a miscarriage of justice had occurred by reason of the way he had been represented at trial, Mr Gonzales formally waived privilege, and both Mr Jawas and Ms Avenell prepared affidavits. Mr Jawas gave short further evidence in chief concerning the timing of the decision for Mr Gonzales not to give evidence at trial, and was not required for cross-examination by Mr Gonzales. Nor did Mr Gonzales seek to cross-examine Ms Avenell, as is apparent from the following:

9. [9]

   To anticipate what follows, in important respects Mr Gonzales’ recollection of what occurred at trial and the decisions made in connection with it is demonstrably incorrect, perhaps because he did not appreciate fully what was occurring at the time, or perhaps because of the more than three years which has ensued. In order to explain this, it is not necessary fully to summarise the evidence at trial, although it is necessary to provide an overview of the key issues and forensic decisions.

Overview of the trial

1. [10]

   There was no dispute that on the night of 29-30 May 2020 Mr Velasquez sustained serious injury causing skull fractures on both sides of his head and bleeding on the brain, because of wounds suffered at premises on President Ave, Monterey in Southern Sydney. It was not in dispute that there was a party that evening, that attendees were drinking beer, and that at around midnight there was an incident inside the house involving Mr Velasquez, and that sometime after this there was an incident involving Mr Velasquez and Mr Gonzales outside the house. Mr Velasquez was admitted to the Emergency Department of St George Hospital at 1.20am on 30 May 2020, presenting with extensive bruising to his face and skull, swelling and abrasions to his face, bleeding from both ears and a 3-4cm laceration behind his right ear. A CT scan revealed that he had skull fractures on both sides of his head. The laceration behind his ear was stapled but became infected and required surgery and antibiotics. The foregoing, together with the fact that the injuries sustained by Mr Velasquez amounted to grievous bodily harm, were tendered as agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW).

2. [11]

   In her opening to the jury, on the morning of 3 November 2021, Ms Avenell said:

3. [12]

   In the Crown case, Mr Velasquez, various neighbours and various attendees of the party gave evidence. One of the attendees who gave evidence was Mr Julian Salazar Castano, who had pleaded guilty to reckless wounding in company and gave evidence that he had seen Mr Gonzales strike Mr Velasquez with a brick or rock, and that he had lied in his interview to police that evening when he said that he had seen nothing.

4. [13]

   In support of his appeal, Mr Gonzales relied on parts of the neighbours’ evidence, and in particular upon two 000 calls which were made, separately, by two of them. One said of the party that “it’s gotten out of hand umm they all [went and they’ve] got a massive rock and they’re smashing it on the front door to break in, to get back in”, while the other said:

5. [14]

   Mr Gonzales also relied on photographic evidence, which had been tendered at the trial, showing the damage to the front door, which he said had been inflicted by Mr Velasquez. All of that may be accepted.

6. [15]

   But some of the neighbours gave direct evidence of the assault. For example, one said:

7. [16]

   There was also forensic evidence of a fragment of brick with blood stains on it, and medical evidence to the effect that a brick thrown with considerable force could have caused the injuries.

8. [17]

   Mr Gonzales said to this Court, and more importantly had said in an electronically recorded interview with police on 2 June 2020, which was played to the jury, that he was scared when Mr Velasquez smashed a window and broke in through the door.

9. [18]

   However, in the same interview, Mr Gonzales had also repeatedly denied hitting Mr Velasquez with a brick. He accepted that he pushed Mr Velasquez, but maintained that he did not punch him and did not hit him with a brick. His answers included the following:

10. [19]

    Mr Gonzales was confronted with accounts of other witnesses, but denied that he had thrown a brick. Indeed, he denied there were any bricks at the premises.

11. [20]

    On the afternoon of 9 November 2021, which was the sixth day of the trial, Ms Avenell advised the trial judge, in the absence of the jury, that self-defence would not be relied upon. As I read the transcript, she seems also to have implied that Mr Gonzales would present no case and that addresses would take place the following day. Whether or not that is so, on the following morning, and this time in the presence of the jury and immediately after the last Crown witness had given evidence, Ms Avenell confirmed that there was no case for Mr Gonzales. The trial judge immediately thereafter gave directions to the effect that there was no requirement for Mr Gonzales to present a case and that at all times it was for the Crown to prove its case beyond reasonable doubt, with Mr Gonzales bearing no onus and not having to prove anything. That anticipated a direction given in his Honour’s summing up. It may be noted that there was no complaint about any aspect of the summing up, or any of the directions given to the jury.

12. [21]

    Ms Avenell did not address the jury on self-defence. Very early in her address she said:

13. [22]

    Ms Avenell then addressed on the conflicting accounts at trial, and the medical evidence concerning the injuries sustained by Mr Velasquez.

14. [23]

    The trial judge when summing up made it clear that if the jury accepted Mr Gonzales’ denial in his interview that he had struck Mr Velasquez, or if while not completely accepting what he had said, nonetheless had a reasonable doubt as to whether the Crown had made out an essential element of its case, they must acquit.

15. [24]

    The most efficient course is to address in turn the various matters on which Mr Gonzales relies in support of his appeal.

16. [25]

    In his written and oral submissions, Mr Gonzales complained that his case based on self-defence was not put at trial. In his words, “in my trial, self-defence never got mentioned” (Tcpt, 6 May 2024, p 11(4)). During his address, Mr Gonzales was directed to the transcript of Ms Avenell’s opening reproduced above, and there ensued the following exchange:

17. [26]

    It is plain that self-defence was opened on the first day of the trial, but withdrawn at the end of the trial; Mr Gonzales’ recollection to the contrary is incorrect. The stance adopted by the defence permitted Mr Gonzales to reserve to himself the right to choose between the two diametrically opposed ways of advancing his defence: putting the Crown to proof on whether it had established that he had caused the grievous bodily harm sustained by Mr Velasquez, or accepting that he had done so but saying that it had occurred in self-defence. Mr Gonzales’ account of dissatisfaction with Mr Jawas, in advance of the trial, concerning the abandonment of self-defence is inconsistent with the facts established by the transcript and Ms Avenell’s notes that self-defence was explicitly opened upon and abandoned at the end of the trial.

18. [27]

    Mr Gonzales said, repeatedly, that he only had two conferences with Ms Avenell. Yet her affidavit annexes file notes prepared by her or her instructing solicitor of conferences with counsel, solicitor and client, which plainly were more numerous than Mr Gonzales could remember. The notes are dated 30 September, 7 October, 14 October, 22 October, 25 October and 27 October. In many cases there are notes of the same conference by her and by Mr Jawas. In a note dated 22 October, Ms Avenell referred to recently served statements by Mr Salazar Castano and Ms Amy Reed. Ms Reed’s new statement was not in evidence, but its content may readily be inferred from her evidence-in-chief that she saw Mr Gonzales throw a brick at Mr Velasquez while the latter was lying on the ground, she saw it land on his head, and she had tried to stop Mr Gonzales from doing so but “by the time I got there the brick was already thrown”. That this account was only provided shortly before the trial was summarised by the judge when imposing sentence:

19. [28]

    Consistently with the above, in her re-examination Ms Reed gave the following evidence:

20. [29]

    In light of this new statement, Ms Avenell’s note of 22 October recorded, “very serious risk will be found G”.

21. [30]

    Notes of 25 October on LY Lawyers notepaper, presumably made by Mr Jawas, contain the following:

22. [31]

    Based on those notes, Ms Avenell refuted the allegations made by Mr Gonzales that she only spoke to him twice. She did so in considerable detail, in paragraphs 8-28 of her affidavit. As earlier noted, Mr Gonzales challenged none of this. It is perfectly clear that Mr Gonzales’ recollection is incorrect on this issue.

23. [32]

    One of those file notes, dated 22 October 2021, records a conversation concerning the possibility that Mr Gonzales would plead guilty. Some of the writing is difficult to decipher, but its sense seems to be that he would plead guilty “to push causing injury, but the rock was thrown past him … [He] pushed him because he came to hit me with a rock”. Mr Jawas has then recorded in capitals:

24. [33]

    That exchange appears to capture the essential dilemma confronting Mr Gonzales at the trial. On the one hand, he wished to require the Crown to prove beyond reasonable doubt that the injuries sustained by Mr Velasquez were caused by the brick or rock thrown by him. On the other hand, he also wished to advance a case of self-defence, but that case presupposed that he had injured Mr Velasquez.

25. [34]

    Ms Avenell gave evidence, which as noted above was not the subject of challenge, as to why self-defence was not relied upon. She did so not by reference to her recollection in 2024, but in accordance with a note annexed to her affidavit and dated 22 December 2021. The affidavit also annexed her email of that note to her instructing solicitors of that date. The note states as follows:

26. [35]

    The reference to “[9] above” was the following paragraph:

27. [36]

    The client’s instructions were contained in a three page document, also annexed to Ms Avenell’s affidavit, which set out Mr Gonzales’ account of what had occurred. She said that the document was amended from time to time by Mr Gonzales, and that she had annexed the final version dated 3 November 2021. The statement included:

28. [37]

    There was no challenge to any of Ms Avenell’s evidence.

29. [38]

    In some of his submissions to this Court, Mr Gonzales said that he did not tell the police that he had struck Mr Gonzales because he was at the time still in fear of his life. What is clear is that (a) his electronically recorded interview denies hitting Mr Velasquez with a rock, and (b) the notes provided to his counsel likewise deny doing so.

30. [39]

    No basis has been demonstrated to call into question the appropriateness of what occurred at trial concerning self-defence. Advancing that defence would have required acknowledging that he had knowingly lied to the police in the immediate aftermath of the altercation, and abandoning the defence based on the perceived weaknesses in the Crown case establishing that a rock or brick thrown by him had wounded Mr Velasquez.

31. [40]

    Mr Gonzales also complained that he was not permitted to give evidence. Evidently there was discussion towards the conclusion of the Crown case of whether he would give evidence. The best evidence of what occurred is the note prepared by Ms Avenell immediately after sentencing:

32. [41]

    In her affidavit, Ms Avenell also gave the following evidence about this decision:

33. [42]

    It is perfectly plain that if Mr Gonzales had gone into evidence and advanced a case of self-defence, he would have had to acknowledge lying to the police, which would necessarily have damaged the jury’s assessment of him, at the conclusion of the trial, shortly before they retired to deliberate.

34. [43]

    If Mr Gonzales had gone into evidence but not advanced a case of self-defence, he would nonetheless be exposed to cross-examination concerning his statements to police, and he would have been confronted with the Crown case.

35. [44]

    Nothing in the appeal books, and nothing that I have seen while hearing Mr Gonzales advance his case in this Court, casts any doubt upon the accuracy of the assessment made at trial that if Mr Gonzales had given evidence, it would not have advanced his case.

36. [45]

    At the commencement of his submissions in reply in this Court, Mr Gonzales referred to two further letters:

37. [46]

    The letters had been attached to a previous notice of appeal filed by Mr Gonzales which did not comply with the rules. The Registrar’s directions in advance of the appeal had obliged Mr Gonzales to identify the evidence he relied upon, which had not included these documents. Accordingly, they had not been the subject of evidence or submissions from the Crown, nor had they been included in the appeal books.

38. [47]

    Nonetheless, bearing in mind the seriousness of the appeal to Mr Gonzales, the fact that he was not represented, and the fact that he said that the letters were said to be very important, the letters were tendered. There followed brief cross-examination by the Crown of Mr Gonzales, and a grant of leave for the Crown to adduce further evidence on those documents from the lawyers who formerly had acted for him, or alternatively to advise that what had already been said about other letters written by Mr Gonzales extended to these letters.

39. [48]

    Both letters appear to be in Mr Gonzales’ handwriting. The first is dated 3 November 2021, and is addressed “To: your Honour”. The letter implies, although it falls short of squarely stating, that he hit Mr Velasquez with a brick. After saying that he separated Mr Salazar Castano and Mr Velasquez from a fight in the kitchen, and evicted him from the premises, the letter states that Mr Velasquez returned a few minutes later, and threatened to kill him. Mr Gonzales picked up a piece of brick, and after Mr Velasquez had tripped over backwards, and had fallen to the ground but was still threatening to kill him, the letter stated:

40. [49]

    The second letter, dated 10 November 2021, which is addressed to Jose Velasquez, once again implies that he injured him but does not say so explicitly. Relevantly, it stated:

41. [50]

    The first letter was dated 3 November 2021. That was the second day of the trial, after the jury had been empanelled. If the letter was provided on that date, it could not have been given to the judge. The second letter, dated 10 November 2021, was the seventh day of the trial, during closing addresses.

42. [51]

    The final substantive paragraph of Ms Avenell’s note from 22 December 2021 is as follows:

43. [52]

    There is no reason to doubt any aspect of the contemporaneous notes supplied by counsel who then acted for Mr Gonzales.

44. [53]

    It is quite plain that neither letter, even if the dates are accurate and they had been provided to Ms Avenell at that time, could have been provided to its addressee. Mr Gonzales gave evidence to this Court, when being cross-examined by the Crown, that he gave the letter addressed to the trial judge to Ms Avenell at some later stage. She appeared for him at the sentence hearing, which seems to have taken place on, or perhaps shortly before, 17 December 2021 (the transcript is not included in the appeal books). Although it may be accepted that part of Mr Gonzales’ grievance is that the letter was not shown to the trial judge, nothing turns on this. Assuming, favourably to Mr Gonzales, that his letter was written on the date it bears, that was the day after the jury was empanelled and the letter could not have been provided to the trial judge at any time prior to the jury’s verdict.

45. [54]

    That is sufficient to resolve this aspect of Mr Gonzales’ complaint. As noted above, the Crown was given leave to adduce further evidence from Ms Avenell in relation to the letters which Mr Gonzales belatedly sought to rely upon. She did so by affidavit dated 9 May 2024. She said that she did not see the letter dated 3 November 2021, that she was confident she had not seen it until it was sent to her on 6 May 2024, and that she doubted she could have continued to appear for Mr Gonzales had she been given it. She said that the final paragraph of her note from 22 December 2021 did not apply to the letter dated 3 November 2021. She said that she did not remember seeing the 10 November 2021 letter, but might have done so, and that if she had received it she would have said: “We are still in the trial and I can’t just give documents to the judge. If we get to it, these kinds of letters can be used for the sentence”.

46. [55]

    Even putting to one side Ms Avenell’s further affidavit, I am not satisfied that Mr Gonzales gave the 3 November 2021 letter to Ms Avenell. His recollection is demonstrably unreliable. It is inconsistent with the typewritten instructions on which the defence was conducted. And if counsel had been given the letter, it is likely that the trial would have taken a different course. Ms Avenell’s 9 May 2024 affidavit is confirmatory of the position I would reach in its absence.

47. [56]

    It is also clear from another handwritten (and this time undated) letter from Mr Gonzales emailed from Parklea Correctional Centre to Ms Avenell on 10 December 2021 in which he acknowledged throwing a brick but insisted that he “threw it on the ground out of his reach so he couldn’t hit me with it”, that Mr Gonzales has written a number of accounts from time to time, inconsistent with one another.

48. [57]

    The fact that the Court permitted Mr Gonzales to rely on new evidence in reply has caused a deal of attention to be given to a point not hitherto mentioned by him. However, for the reasons given above, it does not persuade me that there is anything unsafe about his conviction, or anything deficient about the way his defence was conducted. To the contrary, everything I have seen about the conduct of the defence tends to confirm that Mr Gonzales was fully informed of his legal entitlements, was given advice which was more than competent, and took advantage of such avenues of defence as were properly available to him. It is true that it would have been open to Mr Gonzales to run a defence of self-defence, but that would have required him admitting that he had lied to the police in his electronically recorded interview, not to mention dealing with the evidence that when he threw the brick at Mr Velasquez, the latter was lying on the ground.

Conclusion and orders

1. [58]

   For those reasons, nothing that has been advanced by Mr Gonzales causes me any concern that there has been a miscarriage of justice. The contrary is the case.

2. [59]

   In light of the full argument that has proceeded, I propose that there be a grant of leave and the requisite extension of time. However, the appeal should be dismissed.

3. [60]

   CAMPBELL J: With respect, I agree entirely with what Leeming JA has written and with the orders his Honour proposes. I would simply wish to add while it is clear law that it is the right of an accused person to decide whether or not to give evidence in his or her own defence regardless of the views of counsel, like all matters involving the important decisions to be made by the defence in the conduct of a criminal trial, the accused will almost always look to his or her counsel for advice on the better course to adopt where there are options. I am satisfied that the evidence of Ms Avenell and Mr Jawas, which I accept, establishes that Mr Gonzales was made aware of his right but received the advice of counsel that it would be unwise for him to exercise that right for the reasons explained by Leeming JA (at [42] – [43] above). I am satisfied that Mr Gonzales was content to accept counsel’s sagacious advice.

4. [61]

   N ADAMS J: I agree with the orders proposed by Leeming JA for the reasons provided by his Honour. At the commencement of the hearing of this appeal, the central issue was whether the applicant’s trial had miscarried because of the manner in which senior counsel conducted his defence. The specific complaint was that she failed to rely on self-defence in her closing address. Given that his instructions at trial were a denial that he caused the victim’s injury, there was no proper basis for self-defence to be left to the jury. In these circumstances, the applicant faced significant difficulty in establishing a miscarriage of justice.

5. [62]

   As Leeming JA has explained, it was only in the applicant’s submissions in reply that he produced documents to the court which he contended proved that he had in fact instructed his solicitor and barrister that he did do the act which caused the injury. If the applicant’s new version of events was accepted, then his appeal may have had prospects of success but that is not the case. I am unable to accept the applicant’s belated account that he provided different instructions to his lawyers then those upon which his defence was based for the reasons provided by Leeming JA at [53]-[56].