Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2)

1. [1]

   HER HONOUR: Sef Gonzales was found guilty by a jury of the murder of his sister, his mother and his father. The trial concluded in May 2004. In September 2004, he was sentenced by James J to three life sentences. [1] In November 2007, his appeal against the convictions and sentences was dismissed by the Court of Criminal Appeal. [2]

2. [2]

   In June 2017, Mr Gonzales (referred to here as the applicant) made an application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his convictions, contending that there is a doubt or question as to his guilt. That application was dismissed by Adamson J on 29 May 2018. [3]

3. [3]

   The applicant has now made a second application under Part 7, asserting that “new material has come to light” as a result of the previous application. As I will explain, that assertion appears to be based on a misreading of a particular statement made by Adamson J in her Honour’s reasons for dismissing the previous application. The new application also includes grounds for review that were not argued in the first application including assertions of prejudicial conduct on the part of the Crown prosecutor and alleged incompetence on the part of counsel appearing for the applicant at his trial.

4. [4]

   Section 79(3) of the Crimes (Appeal and Review) Act confers a broad discretion on the Court to refuse to consider such an application. The grounds on which it might do so are unlimited but include cases where it appears that the matter has been “fully dealt with” in the primary proceedings (including any proceedings on appeal) or previously dealt with under Part 7 and that there are no special facts or special circumstances that justify the taking of further action. In my assessment, it would have been open to refuse to consider the present application on that basis. However, as I have undertaken a full review of the matter in the process of reaching that conclusion, and having regard to the seriousness of the convictions and the sentences imposed, I consider the preferable course is to determine the present application on its merits.

5. [5]

   I note for completeness that the applicant (who now represents himself) put forward two additional explanations for bringing a second application. First, he asserts that he was given incorrect legal advice by his former legal representatives (who acted for him on the appeal and in the first Part 7 application) as to the grounds that could be raised in a Part 7 application. There is no evidence to support that assertion. Secondly, the applicant submits that the previous application was not determined according to law. That submission is addressed below. My decision to determine this second application on its merits does not reflect acceptance of either of those contentions.

6. [6]

   I have concluded that the application should be dismissed, for the following reasons.

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

1. [7]

   The application is brought under s 78(1) of the Crimes (Appeal and Review) Act, which provides:

2. [8]

   The Court’s powers in considering such an application are addressed in s 79, which relevantly provides:

3. [9]

   The applicant seeks referral of the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW), as allowed under s 79(1)(b) of the Crimes (Appeal and Review) Act (where the test under s 79(2) is met).

4. [10]

   The consideration of an application under Part 7 is not an exercise of judicial power: Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783; [2013] NSWCA 383 at [12]. The purpose of such an application is remedial in nature and is “designed to overcome injustices that sometimes arise in the course of the administration of criminal justice”: Re Application of Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [5] (Johnson J). The right to make an application is not intended to provide a convicted person with “yet another avenue of appeal after the usual avenues have been exhausted”: Holland at [9].

5. [11]

   The Court’s authority to make a referral or direction under s 79(1) is enlivened only if the “gateway” in sub section (2) is “passed”: Sinkovich at [25] (Basten JA). The question is whether “it ‘appears’ to the judge that the condition is satisfied”: Sinkovich at [26]. In that case, Basten JA noted that the content of the condition as to which the judge must be satisfied is somewhat obscurely worded but that applications may involve matters of fact or errors of law: at [27] and [32]. His Honour said at [27]:

6. [12]

   There are decisions in which the test has been posed as being whether the material relied upon causes the person considering the matter “unease” or a “sense of disquiet” in allowing the conviction or sentence to stand: Application of Pedrana [2000] NSWSC 970; (2000) 117 A Crim R 459 at [28]; Regina v Suey [2001] NSWSC 543 at [18]; Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 260 at [3]; Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review Act 2001 (No 1) [2015] NSWSC 291 at [20]. That was the approach taken by Adamson J in the previous application at [6]-[8].

7. [13]

   However, in Sinkovich, Basten JA rejected the “unease or sense of disquiet” formulation as a gloss on the words of the statute. His Honour said at [65]:

8. [14]

   In accordance with those remarks, the approach I have taken is to determine whether, based on the material before me, it appears that there is a doubt or question as to the applicant’s guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case.

The Crown case at trial

1. [15]

   The Crown case was circumstantial. I do not purport by any means to summarise it all. What follows is a potted summary, drawn primarily from earlier decisions, which is intended to place the discussion that follows in context.

2. [16]

   The Crown alleged that the applicant committed the murders because he wanted to inherit his parents’ property. It was alleged that he had attempted to poison his mother about 10 days before the murders and there was compelling evidence to that effect. The trial judge found at [38] of the sentencing judgment that the applicant’s motive for the murders was that “he was fearful that, because of his poor performance in his university studies, his parents might take his car away from him and might withdraw other privileges which had been granted to him and that he wished to succeed, without delay and as sole heir, to his parents’ property”.

3. [17]

   The offences were committed on 10 July 2001. The trial judge summarised the facts as follows (at [19]-[30] of the sentencing decision):

4. [18]

   The Crown submitted to the jury in his closing address that the applicant had deliberately stayed out late with Sam Dacillo in the expectation that a relative or friend would find the bodies and the offensive message painted on the wall before the applicant returned to the house so that he would then arrive with a ready alibi for police called to the scene (Tcpt, 13 May 2004, p 1378(14)-(45)). However, that did not happen and in due course the applicant arrived home (so the Crown alleged) to the scene that he had left. The Crown submitted that this unexpected turn of events explained aspects of the triple-0 call made by the applicant in which (so the Crown submitted) he gave an account of events which inadvertently supported the case that he had committed the murders and which was inconsistent with his later account to the jury (Tcpt, 13 May 2004, p 1379(4)-(17)).

5. [19]

   The matters relied upon by the Crown to support its circumstantial case against the applicant were summarised by Adamson J at [10] of her Honour’s reasons (drawn from the trial judge’s summing-up at pp 37-42) as follows:

6. [20]

   The evidence in support of point (1) above was extensive. The detail of that evidence (as summarised by Adamson J) is set out below.

7. [21]

   The Crown submitted, in respect of point (5) above, that the jury would readily infer that the applicant reported the alleged theft of his tracksuit pants because he was worried that his clothing had been found by police and that the scientific analysis would incriminate him in the murders.

8. [22]

   The Crown also alleged that the applicant put forward false alibis, gave inconsistent accounts and left false trails. Those matters were summarised by the trial judge in the sentencing judgment as follows at [53]-[64]:

9. [23]

   At the trial, the applicant relied by way of alibi on the evidence as to when he was with Sam Dacillo, which he contended gave him a credible alibi from about 7.45 pm until emergency services arrived at the family home. He denied poisoning his mother; he said there was an explanation for the presence of his car at the house at the times identified; he contended that the evidence supposedly connecting him with the graffiti (similar hand-writing and left-handedness) was inconclusive; he put forward an innocent explanation for the similarity between the paint used in the graffiti and a spot of paint on the jumper he wore that night; he said that the evidence as to the times of death did not accord with other aspects of the Crown case; that there was a reasonable doubt based on multiple credible death threats received by the family; and that there was no evidence that he had cleaned up or disposed of any evidence.

10. [24]

    Justice Adamson summarised the evidence about the timing of the deaths of the three deceased (and its significance) as follows:

Material relied upon in the previous Part 7 application

1. [25]

   Later in her reasons at [43]-[53], Adamson J summarised the new evidence relied upon by the applicant in support of the application determined by her Honour, as follows:

Material relied upon in the present application

1. [26]

   Section 79(4) of the Crimes (Appeal and Review) Act provides that, although proceedings under that section are not judicial proceedings, the Court may consider any written submissions made by the Crown with respect to an application. The parties exchanged the following submissions:

2. [27]

   The only material attached to the applicant’s submissions in support of the present application was one of the two reports of Professor Hilton provided to Adamson J (the report dated 22 February 2011), extracts from the statements of Detective Elliott and Sergeant Betts and extracts from the trial transcript. The Court was also provided with five volumes of material comprising the four volumes of trial transcript and the volume of material provided to Adamson J in support of the previous s 78 application.

Ground 1: an indispensable, intermediate fact in the circumstantial case?

1. [28]

   The applicant seeks review of his convictions on four grounds. The first is:

2. [29]

   Some explanation of this ground is required. It is obvious from the evidence concerning the injuries sustained by the three victims that the person who committed the murders could not have done so without coming into contact with significant amounts of blood. It is doubtful whether expert evidence was needed to establish that proposition but it was nevertheless provided in the new material relied upon by the applicant to support the previous Part 7 application, being the reports of Professor Hilton considered by Adamson J in the passages set out above.

3. [30]

   Professor Hilton is a medical practitioner practising principally as a forensic pathologist and consultant in forensic medicine. He provided reports dated 22 February 2011 and 10 July 2012. In his first report, he stated that the nature of the injuries suffered by the victims “would indicate a high level of probability of contamination of the person and clothing of the assailant(s) by the victims’ blood” and that “the clothing worn by the assailant(s) would be expected to show fairly extensive blood staining”. He concluded that “the quantity and distribution of shed blood would indicate a strong likelihood of the assailant(s) person and/or clothing being contaminated with that blood.” In his second report he reiterated that the Gonzales family killings were “quite markedly bloody affairs” and said that he would expect there to have been a substantial transfer of blood from the victims to the assailant or assailants.

4. [31]

   A number of people saw the applicant on the night in question after the time when, according to the Crown case, the murders had been committed, including his friend Sam Dacillo (who he had agreed to meet at 8.00pm) and, later, ambulance officers and police who attended the scene after the applicant called triple-0. None of those people noticed any blood on the applicant or his clothes. It follows that, if the applicant committed the murders, he must have cleaned up and changed clothes afterwards, before meeting Sam Dacillo. Indeed, based on something the applicant later told police (that three pairs of his tracksuit pants had gone missing from the house), the Crown invited the jury to infer that the applicant changed tracksuit pants after each murder, presumably so as to avoid alarming each next victim by his bloodied appearance (see for example closing address at Tcpt, 13 May 2004, p 1377(35)-(37)).

5. [32]

   The applicant makes a number of points about this aspect of the Crown case. The first is based on the principles stated in Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56. For the purpose of this discussion, it is convenient to refer to the acts in question (cleaning up, changing clothes and disposing of weapons and bloodied clothing and other items) as the clean-up. The applicant submits that the clean-up was an indispensable, intermediate aspect of the Crown’s circumstantial case which was accordingly required to be proved beyond reasonable doubt. He further submits that the trial judge ought to have given a Shepherd direction in respect of the clean-up aspect of the case.

6. [33]

   I do not accept that analysis. As explained in Shepherd, circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. If the basic fact is indispensable to an inference of guilt, it must be proved beyond reasonable doubt and a Shepherd direction is required. The applicant’s argument inverts that logic and does not reflect the Crown case.

7. [34]

   The Crown did not set out to prove, as a basic fact, that the applicant did the clean-up and invite the jury to draw an inference, from that fact, that the applicant committed the murders.

8. [35]

   Far from being a basic fact forming part of the circumstantial case against the applicant, the absence of any direct evidence of the clean-up was a matter that detracted from the Crown case and on which some emphasis was placed by counsel for the applicant at trial. The Crown prosecutor grappled with the lack of evidence on that issue, as he had to, by inviting the jury to accept that, immediately after committing the three murders, the applicant must have cleaned himself up, changed his clothes and disposed of a number of items including the kitchen knives, the baseball bat, three sets of blood-stained clothing and blood-stained shoes before travelling to meet Sam Dacillo. In accordance with the evidence as to the timing of the three murders, it was accepted by the Crown that the applicant would have had to do all of those things within the space of approximately an hour.

9. [36]

   The applicant relied on three passages from the Crown’s closing address directed to that issue. The first was when the Crown was addressing the jury as to the case that had been put forward by the applicant in his evidence. It is helpful to explain that the applicant had given evidence that, when he arrived home, he heard the side gate slamming shut and he chased after a person he assumed was the person who had murdered his family. The whole of the relevant passage from the Crown’s closing address is set out below (Tcpt, 13 May 2004, pp 1377-1378.

10. [37]

    The Crown returned to the issue later, in the context of addressing evidence concerning a paint stain on the applicant's jumper (which was said to match the paint used to spray the anti-Asian message on the wall). Again, for context, it is helpful to explain that the applicant had given evidence that when he arrived home, he hugged all three members of his family and tried to revive them (Tcpt, 12 May 2004, p 1274(40)-(57)). The Crown said (Tcpt, 13 May 2004, p 1390(46)-(53)):

11. [38]

    Finally, at Tcpt , 13 May 2008, p 1398(16), the Crown said:

12. [39]

    Having regard to those aspects of the Crown’s closing address, it may be accepted that it was an aspect of the Crown case that the clean-up occurred.

13. [40]

    Counsel for the applicant at trial made good use of the absence of evidence on that issue, arguing that, if the applicant had disposed of items of the kind suggested within such a short time frame that evening, they would have been found by police. The argument rested on an expectation that police would have conducted a thorough search of all possible clean-up and disposal sites. However, there was no evidence in the trial that they had in fact undertaken that kind of comprehensive search.

14. [41]

    Mr Terracini, who appeared for the applicant at the trial, put submission as follows in his closing address to the jury at Tcpt, 17 May 2004, p 1428(6)-(31):

15. [42]

    The trial judge’s summing-up included reference to that submission as to the expectation that police would have searched the near neighbourhood thoroughly and that nothing was found. His Honour added that if the accused had disposed of the items, he would have “had to have travelled away from the near vicinity of the house…with a great likelihood of someone observing him” (Tcpt, 19 May 2004, p 166). However, as explained by the Attorney General in his written submissions in the present application, there was in fact no evidence that a comprehensive search of the kind suggested had been carried out. The submission was based on the supposed expectation as to what police would have done.

16. [43]

    If there was incontrovertible proof that the applicant could not have undertaken the clean-up, there would be a doubt as to his guilt. It does not follow that the clean-up was an indispensable, intermediate step in the reasoning process towards an inference of guilt. The absence of evidence of any clean-up or disposal of items was simply part of the matrix of the Crown’s circumstantial case.

17. [44]

    The trial judge gave the usual direction about drawing inferences in a circumstantial case, including the following:

18. [45]

    A Shepherd direction concerning the clean-up was not required and indeed would have been misconceived.

19. [46]

    Separately, the applicant submits that there is new exculpatory material to establish that the clean-up did not occur. The submission is based on a paragraph in the reasons given by Adamson J at [20]:

20. [47]

    The applicant characterises the last sentence of that paragraph as a finding of fact made by Adamson J excluding the possibility of any clean-up or disposal of items by the applicant. He further contends that that finding was based on evidence considered by her Honour which was not before the jury in the criminal trial. Relying on the fact that the remarks appear under the heading “the relevant facts”, the applicant submits that her Honour found that “all possible clean up and disposal sites that would have been available to the applicant” were investigated, forensically examined and excluded, “thus establishing that the applicant did not clean up or dispose of evidence”.

21. [48]

    At paragraph 28 of his primary written submissions, the applicant submits (emphasis added):

22. [49]

    That is clearly a misunderstanding of the reasons of Adamson J. A number of the applicant’s arguments proceed from that mistaken premise. In the section of the reasons in which paragraph [20] appears, her Honour was summarising relevant aspects of the trial based on the material before her. Her Honour did not purport to make any new findings of fact and in any event could not, on the material before her, have made any finding in the terms suggested. The material before her Honour is listed at paragraph [7] of the reasons. Apart from the written submissions, the only new material was the folder of material provided by Nyman Gibson Miralis Lawyers. That folder included material from a variety of sources, some new, some drawn from the original police brief. That evidence amply established that there was a great deal of blood in the house and that the person who killed the victims would have come into contact with blood. It also established from statements from the police brief that people who saw the applicant observed him to have no blood on him. However, it was not directed to the investigations undertaken by police and was not capable excluding “all possible inference that [the applicant] may have cleaned up and disposed of evidence” (the words used by Adamson J).

23. [50]

    The most likely explanation is that, as noted in the submissions of the Attorney General, the wording of paragraph [20] appears to have been taken from the applicant’s own written submissions made in support of his first Part 7 application. A comparison of Adamson J’s reasons at [20] with the relevant section of the applicant’s submissions reveals that her Honour was there summarising (and implicitly assuming the accuracy of) what was put in the submissions at pars 48-57. In particular, the submissions said at par 55:

24. [51]

    A footnote to that paragraph said “during the trial, the Crown presented no evidence of any clean up or disposal of forensic evidence by the perpetrator(s)”.

25. [52]

    The applicant submitted that this so-called new exculpatory evidence excluding all possible inference of the applicant cleaning-up or disposing of evidence was not placed before the jury, who were therefore deprived of “their entitlement to consider the whole of the evidence”. There is no basis for the assertion that relevant evidence was kept from the jury. Nor is Adamson J to be understood to have made a finding of fact to the effect asserted. There was no new evidence before her Honour to support such a finding.

26. [53]

    Separately, the applicant submits that there is a doubt as to the one hour opportunity the Crown says the applicant had to clean up and dispose of evidence. As noted in the Attorney General’s written submissions, arguments about those matters formed a significant part of the applicant’s defence at trial and were emphasised several times in defence counsel’s closing address.

27. [54]

    The applicant notes that it was the Crown case that Teddy Gonzales died at about 6.45 pm and that the applicant accordingly had about an hour to clean up before meeting Sam Dacillo at about 7.45 pm. He submits that the only objective evidence of Teddy’s last sign of life was his use of his mobile phone at 6.23 pm and that “the balance of the Crown case with respect to Teddy’s time of death relies on the assumption that Teddy was heading home at 6.23 pm having made the call approximately 20 minutes’ drive from the crime scene”.

28. [55]

    The applicant seeks to put that aspect of the Crown case in the context of the evidence of the Crown’s forensic pathologist, Dr Cala, who gave evidence in cross-examination that the latest time Teddy could have been alive was “up to about 10pm”. It is important to note that Dr Cala explicitly based that estimate “purely” on his examination of the body and the rectal temperature.

29. [56]

    In the submissions on the present application, in summary, the applicant again emphasises the possibility (based on Dr Cala’s evidence) that Teddy Gonzales was killed as late as 10pm or at least up to “several hours” after Mary Gonzales was killed. On that basis, the applicant submits that there is a doubt as to the period of one hour the Crown submits he would have had to clean up.

30. [57]

    Separately, the applicant identifies a series of reasons for inferring that the period of time available to him for the purpose of cleaning up and disposing of evidence could well have been less than an hour including the timing of his meeting Sam Dacillo (who lived very close to the applicant) and a supposed concession by the Crown that it would have taken “an hour or so” to clean up such a large scale blood transfer: Tcpt, 14 May 2004, p 1398(20). The applicant submitted that if, as the Crown alleged, the applicant had cleaned-up for “an hour or so” then there would have been no time left for the applicant to have travelled to dispose of a large volume of evidence and return in time to meet Mr Dacillo (applicant’s submissions at pars 35-36 and reply submissions at par 6). The relevant passage from the Crown’s closing address is set out at [39] above. It was a submission; it does not amount to a concession that the clean-up and travelling to meet Sam Dacillo could not have been completed in anything less than an hour.

31. [58]

    In any event, those issues were fully dealt with at the trial. No basis has been established for doubting the applicant’s guilt on the basis that he had insufficient time to clean up and dispose of evidence.

32. [59]

    Finally in support of ground 1, the applicant relies on a remark in the reasons of Adamson J at [78] where her Honour said:

33. [60]

    The applicant notes that the point made in the final sentence was not part of the Crown case at trial but that it is “reflected in the decision of Adamson J”. The applicant’s submissions then present arguments against the possibility of the disposal of evidence during that later period of time.

34. [61]

    As this is an issue remarked upon by Adamson J which was not part of the Crown case at trial, I do not see how it can properly form the basis of a doubt for the purpose of the present application. The matter as to which the applicant needs to demonstrate a doubt or question is his conviction by the jury. The case run by the Crown, as argued in his closing address, was that the applicant left the home after murdering his family in the expectation that a relative or family friend would turn up and find the bodies while he was out with Sam Dacillo, giving him a ready alibi. It was no part of the Crown case at trial that the applicant needed or wanted to continue his cleaning up after his return to the house. Justice Adamson’s observation is, with respect, not relevant to the present enquiry.

35. [62]

    The applicant concluded his submissions in support of Ground 1 with the following argument:

36. [63]

    Once it is understood that there was no new evidence before Adamson J excluding the possibility that the applicant disposed of any evidence, it is clear that all of those issues were fully dealt with at the trial. I am not persuaded that there is any doubt or question as to the applicant’s guilt based on the matters raised in the first ground for the application.

Ground 2: conduct of the Crown prosecutor

1. [64]

   Ground 2 is:

2. [65]

   This ground also rests at least in part on the remarks of Adamson J at [20] discussed above. It concerns the conduct of the Crown prosecutor in submitting to the jury that the applicant had cleaned up and disposed of evidence. The applicant submits that, in advancing that argument, the Crown breached his duty as a prosecutor because there was no valid evidentiary basis for it and it was instead grounded only in the prosecutor’s opinion. It was further submitted that the supposed finding of Adamson J at [20] indicates that the Crown’s submission was in fact contrary to exculpatory evidence kept from the jury.

3. [66]

   There is no merit in this ground. To the extent that the submission relies on the reasons of Adamson J, as already explained, it is based on a misconception as to what her Honour said. Otherwise, the Crown case was a circumstantial case and it was well open to the Crown to make the submissions he did. So much was implicitly acknowledged in the applicant’s submissions in support of the previous Part 7 application where it was noted at par 48 that the Crown had “conceded” at trial that “due to the lack of blood on the applicant’s skin or clothing, the applicant must have cleaned himself up”. The absence of forensic evidence to support the inference that the applicant cleaned himself up and disposed of weapons and bloodied items does not mean it did not happen. That was an argument open to the applicant but it has been put to a jury and rejected.

4. [67]

   The applicant sought to draw some support for this ground from the decision of the Court of Criminal Appeal in Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21, pointing out that the Crown prosecutor in Wood was the same as in the applicant’s trial. He sought to draw an analogy between the present complaint and the complaint recorded in Wood at [631] that the Crown prosecutor had improperly and without any basis in evidence offered his own opinion as to the depression suffered by the victim and the “typical” behaviour of persons who commit suicide, thereby seriously prejudicing the accused in that trial. There is no analogy with the present case. The proposition that the applicant had cleaned up and disposed of incriminating evidence was not offered as the Crown’s opinion; it was an obvious available inference and the Crown was entitled to address it.

5. [68]

   I am not persuaded that there is any doubt or question as to the applicant’s guilt based on the matters raised in ground 2.

Ground 3: alleged incompetence of the applicant’s trial counsel

1. [69]

   Ground 3 is:

2. [70]

   The applicant contends that he was incorrectly advised by his former legal representatives. In particular, he contends that he was incorrectly advised that the “incompetence of defence counsel” could not be raised as a ground in a Part 7 application. The suggestion appears to be that he became aware that he could have submitted such a ground from the reasons of Adamson J at [92] where her Honour said (after rejecting a submission based on the failure to put a particular statement characterised as expert opinion evidence before the jury):

3. [71]

   As already noted, the applicant did not put on any evidence to establish the assertion that he was given incorrect advice in relation to the previous Part 7 application. I note that the applicant’s submissions are silent as to the fact that he had the opportunity, which he exercised, to appeal against his convictions. He was represented in the appeal by senior and junior counsel. No ground of incompetence of counsel was included in the appeal. The present ground has all the semblance of an aspirational reconstruction of the case that might have been.

4. [72]

   As already explained, the issue to be determined before the power to make a direction or referral under s 78 is enlivened is whether it appears that there is a doubt or question as to the applicant’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. The inclusion of the reference to “mitigating circumstances” might be thought to be relevant primarily to an application for an inquiry into a sentence rather than a conviction: cf Li v Attorney General for New South Wales [2019] NSWCA 95; (2019) 368 ALR 242. In any event, it is accepted that the section provides a low hurdle for the power to direct an inquiry: Li at [15] per Basten JA, White JA agreeing at [69].

5. [73]

   For the purpose of considering whether such a doubt or question appears on the basis of ground 3, it is necessary to have in mind the principles concerning appeals based on a complaint about trial counsel’s conduct of the trial. Those principles require an appellate court to give due deference to the forensic judgment of trial counsel and the inherent limitations on retrospective review of such judgment. In R v Birks (1990) 19 NSWLR 677, Gleeson CJ said at 683:

6. [74]

   His Honour reiterated those remarks as Chief Justice of the High Court in TKWJ v R [2002] HCA 46; (2002) 212 CLR 124 at [8], saying:

7. [75]

   The principles as to the proper approach of the appellate court bearing in mind the restraint required by those authorities were recently summarised in Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419 at [31] (Macfarlan JA, Rothman and Bellew JJ agreeing at [72] and [73]) as follows:

8. [76]

   As already indicated, I am mindful of the need to consider those principles in the context that, on the present application, the applicant does not have to satisfy the test for appellate intervention. The question is whether it appears that there is a relevant doubt or question.

9. [77]

   The first topic addressed in support of ground 3 is the clean-up and disposal issue. The first point relating to that topic is that defence counsel “failed to cross-examine the relevant witnesses to establish that the applicant did not clean up or dispose of evidence, as now confirmed in the decision of Adamson J at [20]”. As already explained, the submission misconceives what her Honour said.

10. [78]

    The only specific evidence identified by the applicant in support of that submission is the evidence of Detective Elliott who said in his statement at paragraph 7:

11. [79]

    Detective Elliott gave oral evidence that he “participated in the Luminol examination” but the above statement (in particular, that he saw no photoluminescence) was not elicited by the Crown in his evidence-in-chief. He was not cross-examined at all (Tcpt, 20 April 2004, p 473-479). The applicant submits that cross-examination of the detective as to the apparent absence of blood would have cast considerable doubt on the Crown case that the applicant had cleaned up.

12. [80]

    The applicant submits that, because it was not adduced by the Crown, paragraph 7 of the Detective’s statement was kept from the jury: applicant’s written submissions dated 12 September 2018 at par 9. In his submissions dated 31 October 2018, the applicant further submitted (in response to a point made by the Attorney General) that, because the evidence was not adduced by the Crown, it was to be regarded as new evidence. To support that submission, the applicant cited the decision in Wood at [707] where the Court said:

13. [81]

    That is a misapprehension of the process. In order to be “new evidence”, evidence must be evidence that was not adduced at the trial but not all evidence that was not adduced at the trial is properly regarded as new evidence in the relevant sense. The point the Attorney General was making was that par 7 of Detective Elliot’s statement was included in the police brief and so there was every opportunity for the applicant to have that evidence put before the jury. That misapprehension in turn has informed the applicant’s misapprehension as to the nature of the statement made by Adamson J. The applicant considers that her Honour must have relied on the evidence of Detective Elliot in reaching the supposed finding of fact at [20] of her Honour’s reasons. As already explained, that misconceives the task her Honour performed.

14. [82]

    The applicant sought to support the submission that the evidence should have been adduced in cross-examination by reference to the remarks made by Adamson J at [92]. In that part of the reasons, her Honour was addressing a submission made in relation to the untendered report of a paramedic, Mr Gilchrist, as to how long the three victims had been dead. Her Honour said, in that context “there was no reason to put the Gilchrist report before the jury, as such evidence is conventionally adduced orally”. The applicant’s reliance on that remark (applicant’s written submissions in reply dated 12 September 2018 at par 10) is misplaced; her Honour was addressing the form in which opinion evidence is ordinarily given in proceedings before a jury.

15. [83]

    In any event, I am not persuaded that the decision not to cross-examine Detective Elliot suggests any incompetence. There was no evidence in the Crown case to suggest the applicant washed up in the house, which left counsel free to take full advantage of the issue in his closing submissions (as he did).

16. [84]

    Secondly, the applicant submits that defence counsel was incompetent in failing to seek a Shepherd direction in relation to the clean-up issue. For the reasons given in relation to ground 1, I do not accept that submission.

17. [85]

    Thirdly, the applicant submits that, in light of the “clear infringement by the Crown prosecutor in his closing address to the jury in relation to the clean-up and disposal issue” (addressed in ground 2), defence counsel was incompetent in failing to seek a direction from the trial judge to address the infringement or to seek to have the jury discharged. For the reasons already given, I reject the submission that there was any breach of duty on the part of the Crown prosecutor and it follows that this submission must also fail.

18. [86]

    Next, the applicant submits that defence counsel at the trial was incompetent in giving prominence to the issue of clean-up or disposal having “neglected to cross-examine the relevant witnesses in relation to this issue”. He submits that this encouraged the jury to speculate further on the issue in favour of the Crown. I do not accept that submission. The absence of any evidence of cleaning up or disposal of items used in the murders or during the process of cleaning up was a significant point in favour of the applicant. There was no incompetence in emphasising that point in submissions. On the contrary, my impression from reading the closing address is that the point was put powerfully and effectively. The jury rejected it.

19. [87]

    In support of this last ground, the applicant again sought to draw an analogy with the case of Gordon Wood. The analogy is contrived and takes the matter no further.

20. [88]

    Part of the Crown case against the applicant was evidence that the colour and chemical composition of the spray paint used to paint the message “Fuck off Asians KKK” on a wall in the Gonzales family home was indistinguishable from the colour and chemical composition of a spot of paint found on the sleeve of the jumper the applicant was wearing when police responded to his triple-0 call (referred to by the trial judge in the summing-up at p 40).

21. [89]

    At par 66 of the applicant’s written submissions dated 8 August 2018 he submits:

22. [90]

    The applicant submits that his defence counsel was incompetent in failing to cross-examine Detectives Elliot and Gibbs in relation to the “number of differences that were identified between the paint allegedly found on the applicant’s jumper and paint in the graffiti” (par 67). The applicant noted that Mr Wuhrer was not called as a witness at the trial and he was not aware of any statement from Mr Wuhrer being served in the brief of evidence.

23. [91]

    The applicant submits that evidence distinguishing between the two paints would cast doubt on that aspect of the Crown case (par 68). He further submits that, having failed to cross-examine those witnesses, counsel compounded his failure by “giving prominence to the issue” in his closing address (par 69).

24. [92]

    There does not appear to be any substance in this complaint. As submitted by the Attorney General, it appears to be founded on a misreading of Detective Elliot’s statement, which referred to “similarities and differences in the elements present in the jumper fibres and the blue graffiti paint”. It was not a comparison of paint with paint but rather of paint with paint-stained jumper fibres (Attorney General’s written submissions dated 10 September 2018 at par 34(a)). Detective Elliott added: “At the completion of the examination it was determined that more specific, confirmatory forensic analysis was required”.

25. [93]

    The further analysis was conducted by Dr Phillip Maynard, a forensic scientist and expert in chemical analysis and trace evidence, who was called at trial by the Crown to give expert evidence on the subject. He gave evidence about the sensitivity of the two techniques used to analyse colour and chemical composition (Tcpt, 21 April 2004, pp 558-559). This analysis revealed the two samples to be “indistinguishable” in colour and chemical composition (Tcpt, 21 April 2004, p 559-560).

26. [94]

    Any cross-examination of Detective Elliot or Detective Gibbs as to the “similarities and differences” found in their analysis would have run the risk of highlighting the strength of Dr Maynard’s expert evidence that, on further analysis, the colour and composition of the samples were “indistinguishable”. I am not persuaded that there is any merit in this complaint.

27. [95]

    At par 70 of his written submissions, the applicant submits:

28. [96]

    The Attorney General submitted that the submission placed undue weight on the summary of the Crown case in the decision of Adamson J and did not accurately reflect the case in fact put by the Crown at trial. He submitted that there was “no serious dispute” that the applicant had hugged his parents and asserted that the Crown’s credibility challenge was in relation to the applicant’s claim that he “went further than hugging and attempted to revive” each family member.

29. [97]

    I do not think that is an accurate reflection of the Crown case at trial. The summary at [10] of Adamson J’s decision is a faithful summary of the matters listed by the trial judge when he summarised the Crown’s circumstantial case during his summing-up at pp 37-42. Item (6) in the list at [10] of Adamson J’s decision is “Evidence of only a limited amount of blood on the applicant’s person notwithstanding his assertion that he had hugged and tried to revive each of the deceased upon returning home on the night of the murders”. That is an accurate summary of the judge’s summing-up at p 39 where his Honour told the jury that the Crown relied on the fact that, “there was very little blood on the clothes that the accused was wearing when the ambulance officers and police arrived at the house, notwithstanding his assertions that he had hugged and tried to revive all of the three victims”.

30. [98]

    The applicant’s submission fastens on the contention that the Crown submitted that his account of hugging and trying to revive his family members was “not plausible”. The only reference given is to the judgment of Adamson J. As already indicated, her Honour’s summary was in turn drawn from the trial judge’s summing-up. I have been unable to find, in the Crown’s closing address, a submission to the jury in the explicit terms stated by the trial judge. The judge’s understanding of the point appears to have been informed by the Crown’s cross-examination of the applicant. The Attorney General’s assertion that there was “no serious dispute that the applicant hugged the bodies of his parents” was supported by reference to the proposition that “he was observed doing so by his neighbour Shane Hanley”. However, to add to the confusion, that is not what Shane Hanley said. The extracts cited by the Attorney General are set out below, together with an additional question and answer (Tcpt, 14 April 2004, p 232(16)-(18) and 232(40)-(57)):

31. [99]

    Mr Hanley’s evidence did not support the applicant’s account that he “hugged” his parents or that he tried to revive them, only that he “pulled” at them. Further, it does appear that the Crown disputed the veracity of the applicant’s account. The Crown’s cross-examination of the applicant included the following exchange (Tcpt, 12 May 2004, p 1275(17)-(42)):

32. [100]

    In closing address, the Crown prosecutor said only this, evidently referring back to that point (Tcpt, 13 May 2004, p 1390(47)-(49)):

33. [101]

    In any event, the applicant’s point is that his counsel at trial was incompetent in failing to cross-examine Sergeant Betts, the first police officer to attend the crime scene, as to his observation that he saw a “large amount of dried blood” around the bodies of the three victims (statement of Sergeant Betts dated 12 July 2001 at pars 5-10). The applicant submits that the Sergeant should have been cross-examined to establish that the blood had already dried by that time and that this provided a “clear explanation” for the limited amount of blood found on him (applicant’s written submissions dated 8 August 2018 at pars 70-72).

34. [102]

    The decision not to go down that path was well within the forensic judgment of counsel and appears to have reflected good judgment at that. How it would have assisted the applicant to emphasise that he claimed to have tried to revive bodies on which the blood had already dried was not explained. When the applicant was cross-examined by the Crown prosecutor in relation to his first statement to police (where he had described finding his father), the applicant said at Tcpt, 12 May 2004, p 1281(39)-(44):

35. [103]

    The proposition that the applicant could have performed CPR on his father without getting more blood on him is implausible. I am not persuaded that there is any basis to conclude that cross-examination of Sergeant Betts on the issue of dried blood would have assisted the applicant. On the contrary, in my assessment, that would have been a dangerous line of questioning which could well have been damaging to the applicant’s case. The suggestion of incompetence in taking the course that was taken is without merit.

36. [104]

    At par 73 of the applicant’s written submissions dated 8 August 2018, he said:

37. [105]

    I have already referred to the evidence given by Dr Maynard in the trial. The applicant’s submission refers to a part of Dr Maynard’s report which, so far as I am aware, has not been included in the material before me. It is convenient to proceed on the assumption that the report included the matters stated by the applicant. The applicant says that, in his report dated 11 July 2002, Dr Maynard concluded that the most likely source of the black marks on the wall was a piece of furniture. The applicant says Dr Maynard stated:

38. [106]

    The applicant submitted that his counsel at trial was incompetent in failing to cross-examine Dr Maynard in relation to the purported significance of the nitrocellulose lacquer, which he submits “would have cast doubt on this aspect of the Crown case” (applicant’s written submissions dated 8 August 2018, par 75).

39. [107]

    I do not see how any cross-examination on that issue could possibly have assisted the applicant. The Crown case was that Clodine’s injuries were caused by a blunt instrument, such as a baseball bat. The applicant was known to possess a baseball bat but could not produce it for police (Attorney General’s written submissions dated 10 September 2018, par 36(a)).

40. [108]

    In his closing address, the Crown prosecutor said (Tcpt, 13 May 2004, p 1376(14)-(28)):

41. [109]

    In his summing up at p 39, the trial judge reminded the jury of the argument that the injuries to Clodine and the dents in the wall “could have been inflicted by a baseball bat or T-Ball bat”.

42. [110]

    In the circumstances, there could be little forensic benefit in defence counsel cross-examining Dr Maynard as to the presence of nitrocellulose lacquer. Even if such cross-examination could have proved unequivocally (which of course it could not have) that the black marks were caused by a piece of furniture rather than the applicant’s baseball bat, that would not have introduced a doubt as to whether the applicant killed Clodine. It would have been a dangerous line of cross-examination. As submitted by the Attorney General (Attorney General’s written submissions dated 10 September 2018, par 36(c)):

43. [111]

    There is no basis to conclude that there could have been a miscarriage of justice arising from counsel’s decision not to explore the issue of the presence of nitrocellulose lacquer on the wall. The suggestion of incompetence on that basis is without merit.

44. [112]

    As noted by Adamson J at [21] (set out above), the time at which each of the deceased died was significant in the trial because the applicant had credible alibi evidence from about 7.45pm. The applicant notes that, on the Crown case, Mary Gonzales was killed at about 5.30 pm and that Teddy Gonzales was killed at about 6.45 pm, giving the applicant about an hour to clean up and get to Sam Dacillo’s house.

45. [113]

    The applicant contended that defence counsel was incompetent in that he failed to cross-examine Dr Cala in relation to the likely interval between the deaths of Mary and Teddy Gonzales and that this deprived the jury of the opportunity to assess evidence that Mr Gonzales died several hours after 5.30pm (applicant’s written submissions dated 8 August 2018, par 78). The submission went so far as to contend that the jury was deprived of the opportunity to consider evidence “that it was unlikely that [Teddy] was killed at 6.45 pm”.

46. [114]

    The applicant’s defence counsel did cross-examine Dr Cala as to the likely time of death of all three victims. The cross-examination included the following exchange at Tcpt, 21 April 2004, p 536:

47. [115]

    As submitted by the Attorney General, the evidence elicited in cross-examination (that Mr Gonzales could have died “up to about 10pm”) was more advantageous to the applicant’s case than Dr Cala’s written report, where he concluded that Mr Gonzales could have died “up to several hours” after his wife and daughter (Attorney General’s written submissions dated 10 September 2018, par 37).

48. [116]

    There is no merit in this complaint.

49. [117]

    The applicant further submitted that counsel was incompetent in failing to cross-examine relevant witnesses in relation to the evidence given at trial by the applicant’s aunt, Emily Luna.

50. [118]

    Ms Luna attended the crime scene with her eight year old son at approximately 6.05pm on the night of the murders (Tcpt, 14 April 2004, p 312(5)). She gave evidence that, after ringing the front door bell three times, she waited for approximately five minutes during which time she saw through the glass panel on the left side of the door what she initially believed to be a coat stand with a hat and long jacket (Tcpt, 14 April 2004, pp 315-316). In December 2001, Ms Luna participated with police in an attempted reconstruction of what she had seen in July 2001. A recording of that reconstruction was tendered at the trial. Ms Luna gave evidence that, after participating in the reconstruction, she came to the view that “it was actually a person standing there” who was standing completely still (Tcpt, 14 April 2004, pp 320-321). She was cross-examined at length about that evidence (pp 340-360). In re-examination she said she initially thought it was a person but then her son persuaded her it was a coat stand and then after the reconstruction she came back to thinking it was a person (Tcpt, 14 April 2004, p 380).

51. [119]

    The applicant submitted (applicant’s written submissions dated 8 August 2018, par 79) that:

52. [120]

    The Attorney General rejected that analysis, submitting (Attorney General’s written submissions dated 10 September 2018, par 38) that:

53. [121]

    It is not clear to me that this clarification derogates from the applicant’s submission. If the evidence established that there was a person in the house who was taller than the applicant, that was inconsistent with the Crown’s case.

54. [122]

    However, the applicant’s point on this issue falls classically within the scope of issues on which an appellate court would defer to the forensic judgment of defence counsel present at the trial. The applicant submits his trial counsel was incompetent in failing to “verify the height of the coat stand” or to have it “exhibited to the jury in order to allow the jury to assess whether or not the height of the coat stand corresponded with the height of the applicant”, (applicant’s written submissions dated 8 August 2018, par 81). However, as noted in the applicant’s own submissions, Ms Luna gave evidence was that the figure she mistook for a coat stand was taller than her and that the applicant was “probably the same height” as her (Tcpt, 15 April 2004, p 333(36)-(45); 19 April 2004, p 378(10)).

55. [123]

    The complaint raises nothing more than a different view as to the way in which the same issue might have been approached. It does not raise a doubt as to the applicant’s guilt.

56. [124]

    The applicant asserts that his trial counsel failed to call witnesses said to be critical to an alternative hypothesis that other parties were responsible for the three murders. He points to the evidence at trial of Bernardo David, a solicitor who gave evidence in the Crown case that, two months before the murders, he had a conversation with Teddy Gonzales in which Mr Gonzales said he was involved in a property transaction in the Philippines and that his brother was acting as his agent. Mr Gonzales told Mr David that the transaction had fallen through and the other party “told [his] brother they’re going to eliminate my family” (Tcpt, 6 May 2004, p 1044(35)-(51)). The applicant submitted that, according to Mr David, the source of the threat was a phone call which had originated from overseas.

57. [125]

    The applicant submitted (applicant’s written submissions dated 8 August 2018, par 84) that:

58. [126]

    The applicant submitted that despite his “explicit instructions” to counsel that Mr Suntay Tanedo and his sister Nanette Suntay Tanedo were to be called and cross-examined, this did not occur. There is no evidence of those instructions or any discussions with counsel surrounding them. Nor did the submission explore how the applicant anticipates the evidence of those witnesses might have unfolded. There is every prospect that a forensic judgment not to call such witnesses reflected wisdom and experience rather than incompetence. The submission does not raise any appearance of doubt as to the applicant’s guilt.

Ground 4: previous application not determined according to law

1. [127]

   Ground 4 contends that the previous Part 7 application determined by Adamson J was not determined according to law.

2. [128]

   The applicant makes two points in support of his ground 4. The first is based on his misinterpretation of Adamson J’s remarks at [20] as confirmation of the existence of new exculpatory material. This aspect of ground 4 must be rejected. As already explained, there was no new material.

3. [129]

   The second point is based on Adamson J’s rejection of a submission made by the applicant in the first inquiry that the alleged dearth of forensic evidence in his case was analogous to the case of Tiwary v R [2012] NSWCCA 193. The applicant contends that this should have given rise to a doubt or question as to his guilt within the meaning of s 79(2) of the Crimes (Appeal and Review) Act.

4. [130]

   In an application of this kind, there is no warrant for comparison with other cases. The application must, of necessity, turn entirely on an assessment of the particular conviction of which review is sought. Adamson J undertook a careful consideration of the submissions on that issue and I see no deficiency in that analysis. But it would equally have been open to her Honour to dismiss the argument out of hand as inviting a wrong approach to the task of determining the application.

5. [131]

   For those reasons, ground 4 is not made out. Even if it were established that the previous inquiry was not determined according to law, that would not be a basis for granting the present application; it would simply be a basis for entertaining a second application: Sinkovic at [66] and [88].

Conclusion

1. [132]

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

2. [133]

   For those reasons, I dismiss the application. I request the Registrar to forward a copy of these reasons to the applicant.