Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No. 4)

1. [1]

   On 16 July 2021, Mr Sef Gonzales, (the applicant) applied pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act) for an inquiry into his convictions for the murders of his sister, Chlodine Gonzales and his parents, Teddy and Mary Gonzales.

Procedural background

1. [2]

   On 10 July 2001, the three deceased were murdered in their family home in North Ryde. The applicant was arrested and charged with those murders on 13 June 2002. On 20 May 2004, following a trial by jury, the applicant was found guilty of three counts of murder and on 17 September 2004 he was sentenced to life imprisonment without parole for each of the three offences: Regina v Gonzales [2004] NSWSC 822.

2. [3]

   The applicant appealed against his convictions on nine grounds, none of which were upheld. Grounds 1 to 5 were that evidence was wrongly admitted. Grounds 6 to 9 were that there was misconduct on the part of the Crown Prosecutor. There was no unreasonable verdict ground. The Court of Criminal Appeal dismissed his appeal against conviction on 27 November 2007: Gonzales v The Queen (2007) 178 A Crim R 232; [2007] NSWCCA 321. The applicant did not apply for special leave to appeal to the High Court.

3. [4]

   The applicant has made three prior applications to this Court pursuant to s 78 of the Crimes (Appeal and Review) Act. The first application was made on 7 June 2017 and was dismissed by Adamson J (as her Honour then was) on 29 May 2018: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2018] NSWSC 787 (“Adamson J’s judgment”). The second application was made on 8 August 2018 and was dismissed by McCallum J (as the Chief Justice of the A.C.T then was) on 29 October 2019: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412 (“McCallum J’s judgment”). The third application was made on 18 November 2021 and was dismissed by Fagan J on 22 March 2021: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW); (No 3) [2021] NSWSC 263 (“Fagan J’s judgment”).

4. [5]

   Justice Adamson and Justice McCallum each comprehensively dealt with the principles applying to such an inquiry, and the facts and submissions made at trial, on appeal, and in the application they each considered. There is no need to repeat that material in this judgment. Justice Fagan refused to consider or otherwise deal with the application filed in November 2019 on the basis that the issue raised had already been dealt with in the application determined by McCallum J and the argument was without substance.

Application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

1. [6]

   Section 78 of the Act provides that an application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

2. [7]

   Section 79 of the Act provides for consideration of such applications:

Factual background

1. [8]

   The Crown case against the applicant was circumstantial. For context to this application, a summary of the Crown Case is extracted from the judgment of McCallum J:

Material relied upon in the present application

1. [9]

   I confirm that I have had regard to the following material for the purposes of this application:

   1. (1)

      The principal application and accompanying material dated 16 July 2021 and filed 19 July 2021.

   2. (2)

      Submissions on behalf of the Attorney-General of New South Wales dated 12 October 2021 and filed 13 October 2021.

   3. (3)

      Applicant’s submissions in reply with annexures dated 27 January 2022 and filed 28 January 2022.

   4. (4)

      Letter from the applicant to the Crown Solicitor’s Office dated 8 February 2022.

   5. (5)

      Supplementary submissions on behalf of the Attorney-General of New South Wales dated 21 March 2022.

   6. (6)

      Letter from the applicant addressed to the Registrar of the Supreme Court seeking leave to file additional submissions dated 22 March 2022.

   7. (7)

      Applicant’s submissions in response to the supplementary submissions on behalf of the Attorney-General of New South Wales dated and filed 28 March 2022.

   8. (8)

      Letter from the Crown Solicitor’s Office to the applicant dated 6 April 2022 referring to telephone conversations on 4 and 5 April 2022 regarding photos taken of the applicant’s jumper taken by the Forensic Services Group.

   9. (9)

      Letter from the applicant addressed to the Registrar of the Supreme Court seeking leave to file additional submissions dated 7 April 2022.

   10. (10)

       Letter from the applicant addressed to the Associate to Lonergan J dated 8 April 2022.

   11. (11)

       Applicant’s supplementary submissions dated 26 April 2022 relating to ground 6 of the appeal with annexures.

   12. (12)

       Correspondence of Nikolaos Siafakas, AXL Legal, to the Supreme Court Registry, dated 29 April 2022, attaching the following:

   13. (13)

       Email correspondence from the Crown Solicitor’s Office, confirming that the Attorney-General neither consents to nor opposes a grant of leave for the applicant to file further submissions.

   14. (14)

       Further supplementary submissions on behalf of the Attorney-General together with annexures dated 22 June 2022.

   15. (15)

       A letter of Nikolaos Siafakas dated 23 June 2022.

   16. (16)

       Applicant’s submissions in reply dated 26 June 2022.

2. [10]

   The applicant’s original application dated 16 July 2021 raised five grounds of appeal namely:

   1. (1)

      Ground 1: The lack of crucial forensic evidence.

   2. (2)

      Ground 2: The equivocal nature of the two primary aspects of the Crown’s circumstantial case.

   3. (3)

      Ground 3: Exculpatory evidence overlooked by the Crown’s forensic pathologist.

   4. (4)

      Ground 4: Exculpatory Crown witnesses’s evidence; and

   5. (5)

      Ground 5: the alternative hypothesis.

3. [11]

   Grounds 1 and 3 were comprehensively considered and determined in the judgment of Adamson J. Ground 5 was dealt with in the judgment McCallum J and the repetition, in a slightly different guise, of the previous ground regarding the evidence of the applicant’s aunt – ground 4 - formed the basis of the refusal by Fagan J to consider or otherwise deal with in the applicant’s third application in 2021.

4. [12]

   The allegation contained in ground 2 that police fabricated the evidence of the blue paint on the jumper, later augmented by the theory of the “missing” photographs, is new, although the issue of blue paint on the jumper was dealt with at length in the evidence at the trial.

5. [13]

   The Attorney has submitted that given that all of grounds 1 to 5 have been dealt with both at trial and in the previous three applications and that the applicant’s argument about the police fabricating evidence is without basis, the application should be dealt with under s 79(3) which provides a broad discretion to refuse to consider the application: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 NSW (No 2) [2019] NSWSC 1412 per McCallum J.

6. [14]

   The applicant replied in January 2022 that the Court should reject the Attorney’s position, and that there is new material comprising two expert reports that the applicant was “unable to obtain” prior to these submissions. A report of Bryon Collins, forensic pathologist, was attached and based on certain limited information and assumptions Dr Collins answered some questions regarding the forensic evidence related to the poisoning of the applicant's mother by a toxic or lethal dose of ricin/abrin, concluding that there is “absolutely no robust medical/toxicological evidence to support the hypothesis…” and that the provisional diagnosis of “acute infective colitis” provide by Dr Cunningham is entirely reasonable having regard to the fact that her clinical signs/symptoms and abnormal result of the pathology tests were, unfortunately, not definitively investigated”. A link to a webpage about abrin and ricin poisoning was also attached.

7. [15]

   As submitted by the Attorney, this issue was dealt with at trial, including, critically the evidence of Dr Rowell which explained that the progress of symptoms would depend on the dose of poison administered – Transcript 8 April 2004 at page 171.

8. [16]

   In any event, the Crown’s case regarding the poisoning of the applicant’s mother around 1 July 2001 is only one circumstance of its overall case and did not depend solely on medical evidence. There was the purchase of poisonous seeds which the applicant received on 29 June just two days prior to the onset of her symptoms. All of this was left to the jury to accept or reject. The possibility that the applicants’ mother’s symptoms were caused by something other than ricin or abrin poisoning was also left to the jury.

9. [17]

   The second report referred to by the applicant is a one-page report dated 17 November 2021 of John Franceschini, a chemist. The report is elliptical and does not sufficiently explain the basis upon which the author agreed to the question posed:

10. [18]

    Even if I am wrong about that, and the report is a sufficient basis to express the view that it does, as submitted by the Attorney, this report adds nothing of evidentiary value.

11. [19]

    There was some further information provided as to Eduardo Cojuangco and other political figures in the Philippines together with links to news articles and webpages that the applicant claimed were relevant to ground 5. I accept the Attorney’s submission that none of this material advances the issue at all. It has been dealt with at trial and in the previous applications. It is speculative, the issue was before the jury, and they must have rejected the possibility of there having been someone else responsible for the murders in arriving at the verdicts they did.

12. [20]

    On 28 March 2022, the applicant wrote to the Court insisting that there were errors in the Attorney’s 21 March 2022 submissions. These submissions amount to nothing more than an argumentative revisiting of the same material the applicant has already raised.

13. [21]

    On 7 April 2022, the applicant wrote to the Registrar stating that he had “recently discovered evidence which would substantiate a) the tampering/planting of evidence and b) the deliberate cover-up of the tampering of evidence which perverted the course of justice and denied me procedural fairness”. The applicant stated that the material required a “high-resolution computer monitor for him to properly consider to which he could not gain access”.

14. [22]

    On 8 April 2022, the applicant submitted that the evidence of Detective Gibbs was suspect because the series of photographs taken of the front sleeve of the jumper in question has missing six photographs in the “sequence”, and of the remaining nine photographs, none show an image of the front left sleeve of the jumper. The applicant submitted that this meant that the police were hiding forensic evidence in breach of the principles in Wood v R [2012] NSWCCA 21 at [713] to [714].

15. [23]

    On 26 April 2022, the applicant sent a further submission attaching two compact discs containing the photographs in issue that were served as part of the Prosecution Brief and requesting the Court consider Ground 6, prior to grounds 1-5 and that should ground 6 be successful, he would “formally withdraw” grounds 1-5, but if not, the applicant seeks to rely on the “cumulative force” of grounds 1-6.

16. [24]

    The attached written submissions assert that in the applicant’s opinion none of the photographs show the front left sleeve of the jumper near the cuff where the blue paint was seen by Detective Gibbs. The applicant goes on to speculate that there must have been photographs taken and that they have been hidden from him, and that there was inconsistency in the evidence of Detective Gibbs when he gave evidence of only one blue mark on the jumper instead of two, one paint, one pen.

17. [25]

    On 22 June 2022, the Attorney responded, advising that the “missing” photographs 0-6 on roll 35 were of a vehicle unrelated to this criminal investigation. The submissions were accompanied by a letter dated 7 June 2022 by Rebecca Atherton, a Lawyer in the Office of the General Counsel, NSW Police Force, stating that this was the position, providing copies of the photographs concerned, and the relevant aspects of the statement of Detective Gibbs.

18. [26]

    There is in my view no reason to doubt the accuracy and truthfulness of the contents of this letter or the accuracy of the attachments.

19. [27]

    The Attorney submitted that there is no basis for the submission that relevant photographs were withheld. Nor is there any basis, other than speculation by the applicant, to state that the FSG Crime Laboratory “must have” taken other photographs of the front left sleeve of the jumper that were deliberately omitted from the Prosecution Brief.

20. [28]

    The position is that while the photographs in the Appendix are not labelled, photograph number 8 is of the front left sleeve including the cuff.

21. [29]

    The transcript from the trial shows that during his evidence Detective Gibbs was taken to a large number of photos, including this photograph, (numbered 113 at the trial), and referred to the “discolouration” “on the sleeve of the jumper”. Dr Maynard’s evidence was that police had brought the blue area on the jumper to his attention (transcript at trial page 558), and that he saw it not by visual inspection but with a microscope.

22. [30]

    The chemical analysis that Dr Maynard conducted on the jumper, the wall and the spray paint he described as “extremely sensitive and capable of accurate analysis on very, very small samples”.

23. [31]

    I accept the submission of the Attorney that the notion that the police would plant a microscopic quantity of paint on the applicant’s jumper after it was examined by the laboratory that was the same as the paint used by the killer to graffiti a wall inside the house, is highly implausible and I reject the applicant’s submission on this issue.

24. [32]

    The allegation by the applicant that the mark was “planted” is groundless and inconsistent with the applicant’s defence at trial, where the applicant did not dispute there was blue paint on his jumper but told police and gave evidence before the jury that he had spray painted some wood chips with blue paint (Trial Transcript page 1271-4).

25. [33]

    Further handwritten submissions by the applicant dated 26 June 2022 comprise a repetition of the arguments already raised, with a suggestion that the Court should conclude that the response provided by police and the Attorney on 22 June 2022 is untruthful, and that there should have been an “independent” or “objective” review by a person without “any conflict of interest” rather than the response being provided by police who investigated the matter.

26. [34]

    I reject those submissions. Ground 6 has no substance. I reject the submission that there is any “cumulative force” in grounds 1 to 6 being considered together as suggested by the applicant in his letter to the Registrar dated 26 April 2022.

27. [35]

    For the sake of completeness, I also refer to a letter sent to my Associate of 23 June 2022 by Nikolaos Siafakas, a solicitor who had previously been involved in the application made in 2018 and who had also forwarded a copy of the applicant’s submissions dated 28 April 2022 to the Court.

28. [36]

    Mr Siafakis stated that this comprised what the applicant had asked him to convey in a telephone conversation with him. The applicant sought leave to file “concise submissions to assist the court with respect to what he contends to be demonstrably false statements by the police” referred to in the Attorney’s submissions of 22 June 2022.The letter offered to “facilitate a demonstration” that the photos in annexure L to the statement of Detective Gibbs’ statement were not disclosed to the defence. This purported “demonstration” related to the issue of the blue pen line “of which there is only one” on the jumper and which would “categorically establish by reference to Dr Maynard’s report, that the photographs are not what Detective Gibbs has claimed to be”.

29. [37]

    This letter pre-dated the handwritten submissions of the applicant which I have considered but nothing was said in the handwritten submissions suggesting such a demonstration.

30. [38]

    I do not consider the demonstration proposed to be of any utility at all given the matters set out at [25] to [32] of this judgment and I decline to allow it.

Conclusion

1. [39]

   The applicant’s submissions have not persuaded me that there appears to be a doubt or question as to his guilt. The authority to take either of the steps identified in s 79(1) of the Act is not enlivened.

2. [40]

   The application is dismissed.