Citation: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412
Court: Supreme Court of New South Wales
Date: 28 October 2019
Judge(s): McCallum J
Background
The applicant was convicted by a jury in May 2004 of the murders of his sister, mother, and father. He was subsequently sentenced to three concurrent life terms. His appeal to the Court of Criminal Appeal was dismissed in November 2007.
In June 2017, the applicant made his first application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), seeking an inquiry into his convictions on the basis that there was a doubt or question as to his guilt. That application was dismissed by Adamson J in May 2018.
The applicant, now self-represented, brought a second Part 7 application. He claimed that "new material had come to light" arising from the first application, and raised additional grounds that had not been argued previously, including allegations of prosecutorial misconduct and incompetence by his trial counsel.
Legal Issues
- Whether the Court should exercise its discretion to consider a second Part 7 application where the matter had already been dealt with in prior proceedings and in a previous Part 7 application
- Whether any of the grounds raised created a doubt or question as to the applicant's guilt sufficient to enliven the Court's power under s 79(1) of the Crimes (Appeal and Review) Act 2001
- Whether the applicant's misreading of Adamson J's earlier reasons constituted the emergence of new exculpatory evidence
- Whether alleged prosecutorial misconduct or defence counsel incompetence at trial gave rise to a doubt or question as to guilt
- Whether the first Part 7 application had been determined according to law
Decision
McCallum J determined that the Court had a broad discretion under s 79(3) to refuse to consider a second application where the matter had been fully dealt with previously and no special facts or circumstances justified further action. Her Honour concluded it would have been open to decline the application on that basis alone, but chose to consider it on its merits given the gravity of the convictions and sentences.
The central claim of "new material" was found to rest on a misreading of Adamson J's earlier reasons. The applicant had interpreted a passage in that judgment as confirming the existence of new exculpatory evidence, when in fact it recorded nothing of the sort. McCallum J concluded there was no new material of any kind.
The grounds alleging prosecutorial misconduct and defence counsel incompetence were each considered and rejected. Her Honour found no evidentiary basis for the misconduct allegation, and determined that the decisions made by trial counsel, including choices about which witnesses to call and how to cross-examine Crown witnesses, reflected professional judgment rather than incompetence. Neither ground raised any appearance of doubt as to guilt.
The final ground, contending that the first application had not been determined according to law, was also rejected. McCallum J noted that Adamson J had carefully considered the relevant submissions, and that in any event, even a deficiency in a prior determination would not itself justify granting the present application; it would only justify entertaining a second one.
Orders Made
- The application was dismissed.
- The Registrar was requested to forward a copy of the reasons to the applicant.
Key Takeaways
- A second Part 7 application may be entertained rather than summarily refused where the court considers it preferable, given the seriousness of the convictions, to determine the matter on its merits, even if summary refusal would have been available under s 79(3).
- The statutory test under s 79(2) requires that it "appear" to the court that there is a "doubt or question" as to the convicted person's guilt, mitigating circumstances, or part of the evidence. Following Sinkovich v Attorney General of NSW [2013] NSWCA 383, the "unease or sense of disquiet" formulation used in earlier decisions is not a substitute for the statutory language.
- Part 7 applications are remedial in nature and are not intended to provide an additional avenue of appeal after conventional avenues have been exhausted.
- Allegations of trial counsel incompetence must be supported by evidence demonstrating more than strategic decisions that, in hindsight, a party disagrees with. Decisions reflecting professional judgment and experience do not give rise to a doubt or question as to guilt.
- Establishing that a prior Part 7 application was not determined according to law would not itself ground a successful second application; it would serve only as a basis for the court to entertain the second application at all.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Criminal Appeal Act 1912 (NSW)
Cases
- Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783; [2013] NSWCA 383
- Re Application of Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2018] NSWSC 787
- Gonzales v R [2007] NSWCCA 321; (2007) 178 A Crim R 232
- Li v Attorney General for New South Wales [2019] NSWCA 95; (2019) 368 ALR 242
- Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21
- TKWJ v R [2002] HCA 46; (2002) 212 CLR 124
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- R v Birks (1990) 19 NSWLR 677
- Tiwary v R [2012] NSWCCA 193
- Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419
- Application of Pedrana [2000] NSWSC 970; (2000) 117 A Crim R 459
- Regina v Suey [2001] NSWSC 543
- Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 260
- Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 1) [2015] NSWSC 291