Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW); (No 3) [2021] NSWSC 263

Supreme Court New South Wales

Medium Neutral Citation: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW); (No 3) [2021] NSWSC 263 Hearing dates: On the papers Date of orders: 22 March 2021 Decision date: 22 March 2021 Jurisdiction: Common Law Before: Fagan J Decision: The Court refuses to consider or otherwise deal with the application Catchwords: CRIMINAL LAW – application under Part 7 of the Crimes (Appeal and Review) Act 2001 for inquiry into three convictions for murder – where applicant had already appealed unsuccessfully to the Court of Criminal Appeal and made two previous applications for a Part 7 inquiry – whether jury should have had reasonable doubt as to guilt – no special facts or special circumstances justifying further action – Court declines to consider or deal with the application Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Cases Cited: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2018] NSWSC 787 Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412 Gonzales v R [2007] NSWCCA 321 Category: Principal judgment Parties: Sef Gonzales (applicant) Attorney General for NSW (respondent) Representation: File Number(s): 2019/346373 Publication restriction: Nil

Judgment 1. There is before the Court an application filed by Sef Gonzales on 18 November 2019 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), for an inquiry into his convictions for the three murders. On 20 May 2004 the applicant was found guilty of the murders of his sister Chlodine Gonzales and his parents, Teddy and Mary Gonzales. On 17 September 2004 he was sentenced to life imprisonment for each of the three offences. 2. On 27 March 2007 the applicant filed a notice of appeal against each conviction and an application for leave to appeal against sentence. He required an extension of time. On 27 November 2007 the Court of Criminal Appeal made the following orders: 1 Extend the time for filing the notice of appeal and application for leave to appeal up to and including 21 May 2007. 2 Dismiss the appeal against conviction. 3 Grant leave to appeal against sentence but dismiss the appeal. 1. The Court of Criminal Appeal's reasons are: Gonzales v R [2007] NSWCCA 321. It appears that the applicant did not apply for special leave to appeal to the High Court. 2. The applicant has made two 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 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 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"). 3. The following extracts from sections 78 and 79 of the Act are relevant to determination of the present application: 78 Applications to Supreme Court (1) 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) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister. 79 Consideration of applications (1) After considering an application under section 78 or on its own motion— (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if— (a) it appears that the matter— (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part […] […] and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. […] (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. 1. On 10 July 2001, the applicant's sister and parents were killed in the family home at North Ryde, where the applicant also lived. The Crown case against the applicant is summarised in Adamson J's judgment at [9]-[19] and in McCallum J's judgment at [15]-[19]. As the Crown alleged, and the jury evidently accepted the applicant killed his sister first at about 4:30pm while she was at home alone. He waited in the house until his parents came home from work, first his mother at about 5:30pm and then his father at about 6:45pm. The jury accepted the Crown case that he killed each of them in succession as they arrived. On the night of the homicides and on the next day the applicant advanced to police an alibi, which he confirmed in statements to investigators over the following two weeks. In January 2002 the applicant abandoned that alibi and commenced to construct a second, which was elaborated in a written statement that he prepared and dated 12 April 2002 and that he provided to police on 22 May 2002. 2. The sole ground of the present application is that evidence adduced by the Crown from the applicant's aunt, Ms Emily Luna, gave rise to a reasonable doubt concerning his guilt, to which the jury should have given effect by acquitting him. Ms Luna's evidence was summarised in McCallum J's judgment at [118], as follows: 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). 1. It appears that the glass panel adjacent to the front door was frosted and that Ms Luna saw what she believed to be the person as an outline or shape. The Crown relied upon her evidence in support of an inference that the perpetrator of the homicides was still in the house approximately 45 minutes after the applicant's mother had been killed, which occurred at about 5:30pm, and before Mr Gonzales senior arrived home at about 6:45pm. 2. In support of his second application, which was determined by McCallum J, the applicant referred to Ms Luna's evidence in cross examination that she was of the same height as the applicant and that the person she saw through the glass was taller than her. Transcript the following passage of Ms Luna's examination was provided to her Honour: Q Are you taller than Sef Gonzales without high heels on A No, we're probably the same height I'd say. Q Were you wearing high heels the afternoon that you went round to the premises [with police, in December 2001, for the reconstruction]? A No, probably just a little bit (indicated), not flat shoes but— Q Any idea of the approximate - you have given us a demonstration there? A Probably an inch. Q And was the top of what you initially thought was the hat stand, was that about your height or higher? A Know it was just a little higher than me. 1. In the applicant's initial written submissions to McCallum J (dated 8 August 2018), he contended that his trial counsel had incompetently failed to adduce evidence of the height of the coat stand, or to have it tendered as an exhibit, in order to show that it was taller than himself. The applicant submitted that his counsel thereby lost an opportunity to show that Ms Luna's evidence was inconsistent with him having been the perpetrator who was standing behind the glass panel next to the front door at 6:05pm. 2. The Attorney General provided written submissions to McCallum J on 10 September 2018, in which the above contention, amongst others, was responded to. The terms of that response are not presently material but the applicant made a rejoinder, dated 12 September 2018, that included the following: 16 The figure which Ms Luna and her son had witnessed could only have been the perpetrator as no member of the Gonzales family had a height which corresponded to the height of the coat stand at the crime scene. Therefore, Ms Luna's unchallenged evidence establishes that the perpetrator was taller than the applicant. This is clearly a doubt which the jury should have found. […] such a doubt satisfies s 79(2) of the Act […]. 1. Her Honour had regard to the rejoinder submissions. She specifically identified them at [26](c) of the judgment. At [122]-[123] McCallum J held that the applicant's complaint about alleged incompetence of counsel raised "nothing more than a different view as to the way in which the same issue might have been approached" and that it did not raise a doubt as to the applicant's guilt. With respect, I cannot agree. By the cross-examination extracted at [9] above, defence counsel had secured the point that the coat stand for which Ms Luna had at one time mistaken the person behind the glass was "a little" taller than herself and, therefore, "a little" taller than the applicant. 2. Her Honour clearly did not accept the contention quoted at [11] above although she did not address reasons to that matter separately from the argument about counsel's competence, under which the contention was raised. The submission that "Ms Luna's unchallenged evidence establishes that the perpetrator was taller than the applicant" was and is self-evidently unsustainable. Ms Luna's answers quoted at [9] above amounted to some evidence of the proposition but the jury were entitled to give it little if any weight in view of the witness' necessarily tentative estimation of the relationship between her own height and that of an item that she thought she might have been looking at on 10 July 2001 and that she looked at during the reconstruction in December 2001. It was for the jury to determine whether the evidence "establishes" that the person inside the house was taller than the applicant and was therefore someone else. 3. The applicant's less ambitious contention to McCallum J that the jury "should have found" a reasonable doubt that he was the perpetrator, on the basis of Ms Luna's evidence, is also unsustainable. In order to give rise to a doubt or question as to the applicant's guilt, for the purposes of s 79(2) of the Act, this contention must be understood in the sense that the evidence in question had to give rise to reasonable doubt in the minds of jurors. The evidence was not of that incontrovertible weight or significance. 4. The contention that was put to McCallum J at [16] of the applicant's rejoinder submissions is repeated at [23] of the submissions filed on 4 November 2019 in support of the present application, as follows: [23] [Ms Luna's evidence] establishes that the perpetrator was taller than the applicant. This gives rise to a reasonable doubt as to the applicants guilt which the jury should have found. […] such a doubt satisfies s 79(2) of the Act. […] These submissions continue in these terms: [24] Quite evidently, the significance of the above was overlooked by the jury, nor was such significance mentioned in the summing up to the jury by [the trial judge]. 1. This argument is without substance. Notwithstanding the formulation of the argument in [24], a doubt or question could only rise if the evidence of Ms Luna that is said to have been exculpatory was such that a reasonable jury, properly instructed, had to regard as giving rise to a reasonable doubt. The evidence was of negligible weight and significance. It was well open to the jury to put it one side as not giving rise to any reasonable doubt, having regard to an otherwise very strong Crown case. 2. Applying s 79(3)(a) of the Act, the question of the applicant's guilt, taking into account the aspects of Ms Luna's evidence that he has now raised, has been fully dealt with in the proceedings giving rise to his conviction and sentence and on appeal and has previously been dealt with under s 78 in the application that was determined by McCallum J. Having regard to the lack of substance in the present application, as identified in the two preceding paragraphs, I find no special facts or special circumstances that would justify the taking of the further action: see s 79(3)(b). 3. Accordingly, the determination of the Court is to refuse to consider or otherwise deal with the application of Sef Gonzales filed on 18 November 2019.