Citation: Gonzales v Regina [2007] NSWCCA 321
Court: New South Wales Court of Criminal Appeal
Date: 27 November 2007
Judge(s): Giles JA; Howie J; Fullerton J
Background
The appellant was convicted of three counts of murder following a trial before James J and a jury in the Supreme Court. The victims were his father, mother, and sister, each fatally stabbed at the family home at North Ryde on 10 July 2001. His sister also suffered strangulation and blunt force trauma. The jury returned guilty verdicts on 20 May 2004.
On 17 September 2004, James J sentenced the appellant to life imprisonment for each of the three murders. The sentencing judge found the offences fell within the category of culpability so extreme that only life sentences could satisfy the community interest. The appellant appealed against both conviction and sentence.
The appeal was filed significantly outside the prescribed time limits. The appellant's solicitor explained the delay by reference to difficulty obtaining advice on the merits and funding for the appeal. The Court granted an extension of time, noting the manifest importance of the conviction and the life sentences to the appellant.
Legal Issues
- Whether unrecorded admissions made by the appellant (including a false alibi) were rendered inadmissible by section 281 of the Criminal Procedure Act 1986 (NSW), and whether that point could be raised on appeal in the absence of objection at trial
- Whether evidence available at trial could be relied upon on appeal to establish inadmissibility of those admissions
- Whether the appellant was a "suspect" at the time the admissions were made, which was relevant to the operation of section 281
- Whether the Crown Prosecutor departed from required standards of fairness in cross-examination, including by putting to the appellant that named Crown witnesses were wrong
- Whether the Crown Prosecutor's address to the jury constituted unfair or impermissible conduct
- Whether the three life sentences were manifestly excessive, including whether the sentencing judge gave sufficient weight to the appellant's youth and prospects of rehabilitation
- Whether the sentences were out of line with the pattern of sentences for comparable offences
Decision
Admissibility of unrecorded admissions: The Court examined whether section 281 of the Criminal Procedure Act, which imposes requirements around the recording of admissions made by persons under investigation, operated to exclude the appellant's unrecorded statements. A central question was whether the appellant was a "suspect" at the time those statements were made. The Court considered the absence of any objection at trial and the question of whether fresh evidence could be introduced on appeal to establish inadmissibility. The appeal against conviction on these grounds was dismissed.
Prosecutorial conduct: The Court considered whether the Crown Prosecutor's cross-examination and closing address to the jury fell below the standards of fairness required of a prosecutor. This included examination of whether it was permissible to put to the appellant in cross-examination that Crown witnesses were not mistaken. The Court found no error sufficient to vitiate the conviction, and this ground also failed.
Sentencing: The Court considered the mandatory life sentence regime, under which a life sentence is required where the level of culpability is so extreme that the community interest can only be met by that sentence. The Court acknowledged the sentencing judge's obligation to consider the appellant's youth and the possibility of rehabilitation, and the role of the Parole Board. Comparing the sentences to those imposed in other cases involving young offenders who committed multiple family murders, the Court found it was well open to the sentencing judge to regard these murders as falling within the worst category. Leave to appeal against sentence was granted but the appeal was dismissed.
Orders Made
- Time for filing the notice of appeal and application for leave to appeal extended to 21 May 2007
- Appeal against conviction dismissed
- Leave to appeal against sentence granted; appeal against sentence dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing judge may impose mandatory life sentences under section 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) even where an offender is young, provided the level of culpability is found to be so extreme that only a life sentence can satisfy the community interest.
- In assessing whether an offence falls within the worst case category, each case must be determined on its own facts; prior sentences serve as a guide only and are not precedents requiring distinction.
- A significant unexplained delay in filing an appeal does not automatically preclude an extension of time, particularly where the appellate registry was kept informed and the importance of the matter to the appellant is manifest.
- No error was established in the Crown Prosecutor's conduct of cross-examination or address to the jury, even where the prosecutor put to the accused that Crown witnesses were not wrong.
- Questions about the admissibility of unrecorded admissions under section 281 of the Criminal Procedure Act, including whether a person was a "suspect" at the relevant time, will not necessarily succeed on appeal where no objection was raised at trial.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 10(1)(a)
- Criminal Appeal Rules (NSW), rr 3A, 3B
- Criminal Procedure Act 1986 (NSW), s 281
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1)
Cases (selected):
- Adanguidi v R [2006] NSWCCA 404
- De Gruchy v The Queen (2002) 211 CLR 85
- Gallagher v The Queen (1986) 160 CLR 392
- Kelly v The Queen (2004) 218 CLR 216
- Libke v The Queen (2007) 81 ALJR 1309
- Palmer v The Queen (1998) 183 CLR 1
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Blick (2000) 111 A Crim R 326
- R v Harris (2000) 50 NSWLR 409
- R v Lawrence (1980) 1 NSWLR 122
- R v Merritt (2004) 59 NSWLR 557
- R v Whitmore [1999] NSWCCA 75
- Whitehorn v The Queen (1983) 152 CLR 657