Gonzales v R [2024] NSWCCA 80

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gonzales v R [2024] NSWCCA 80 Hearing dates: 6 May 2024 Decision date: 22 May 2024 Before: Leeming JA at [1]; Campbell J at [60]; N Adams J at [61] Decision: (1) Grant leave to appeal and extend the time within which to appeal. (2) Dismiss the appeal. Catchwords: CRIME – appeal against conviction – whether miscarriage of justice because of representation at trial – whether defence conducted contrary to applicant's instructions – whether self-defence not advanced – whether applicant not permitted to give evidence – whether letters written by applicant not given to judge – no miscarriage of justice Legislation Cited: Crimes Act 1900 (NSW), ss 33, 35 Evidence Act 1995 (NSW), s 191 Public Health Act 2010 (NSW), s 10 Category: Principal judgment Parties: Cristian Mauricio Gonzales (Applicant) Rex (Respondent) Representation: Counsel: Applicant (self-represented) S Traynor (Respondent)

Solicitors: Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2020/00164477 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 15 November 2021 Before: Zahra SC DCJ File Number(s): 2020/00164477

JUDGMENT 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. 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. 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. 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. 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: I am not sure that he presented my case to the barrister Madeleine Avenell in a way that enabled her to effectively represent me. I offered to take the stand, but was not given the opportunity. I was frustrated by this because they clearly failed to introduce all salient evidence on my behalf. 1. 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: LEEMING JA: Thank you Madam Crown. Mr Gonzales, as you've heard there is a gentleman in the Court who is a Spanish Interpreter. APPELLANT: Yes. LEEMING JA: However, to the extent that you're comfortable speaking and understanding English, I was going to suggest that we see how we go but if there's any difficulty whatsoever, you should know there is an Interpreter in Spanish who can be here to translate anything. Are you comfortable with that? APPELLANT: Thank you. Yes thank you your Honour. 1. It was not necessary to call upon the services of the interpreter. 2. 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: LEEMING JA: Mr Gonzales? APPELLANT: Yes, your Honour. LEEMING JA: You heard that the Crown had anticipated wanting to cross examine you about some of your affidavits. APPELLANT: Yes. LEEMING JA: You also have a right, if you want, to cross-examine the barrister, Ms Avenell, about her affidavits if you want. You probably heard me tell the Crown that it's plain that on some things there's a dispute between you and offering to say that there's no need for you to put your case and no need for the Crown to put their case, because that's plain on the face of the affidavits. APPELLANT: Yes. LEEMING JA: The Crown wanted to hear what you wanted to say at this stage. Do you have any questions you want to ask Ms Avenell, who I think is available if you want to cross-examine her? APPELLANT: No, I don't have any questions for Ms Avenell because I only recall two conversations with her because the conversation was in person, so I remember that two conversations with her, it was on trial. 1. 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.