Citation: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No. 4) [2023] NSWSC 323
Court: Supreme Court of New South Wales
Date: 3 April 2023
Judge(s): Lonergan J
Background
The applicant was convicted by jury in May 2004 of the murders of his sister and both parents, who were killed at the family home in North Ryde on 10 July 2001. He received three concurrent life sentences without parole. The Crown case was circumstantial, with the alleged motive being inheritance and a desire to avoid his parents withdrawing financial privileges.
The applicant appealed his convictions to the Court of Criminal Appeal on nine grounds, covering wrongly admitted evidence and Crown Prosecutor misconduct. All nine grounds failed, and the appeal was dismissed in November 2007. No application for special leave to appeal to the High Court followed.
This fourth application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) was filed on 16 July 2021. Three previous applications under the same provision had each been dismissed by separate Supreme Court judges in 2018, 2019, and 2021 respectively.
Legal Issues
- Whether the applicant's fourth s 78 application disclosed a doubt or question as to his guilt, mitigating circumstances, or any part of the evidence, sufficient to enliven the Court's power to direct an inquiry or refer the matter to the Court of Criminal Appeal
- Whether special facts or special circumstances existed that would justify further action, given the matters raised had already been the subject of prior proceedings and applications
- Whether a proposed "demonstration" regarding photographic evidence warranted leave to file further submissions
Decision
Lonergan J examined each of the six grounds advanced by the applicant. These included allegations that photographic evidence had been withheld from the defence, that a police officer's evidence concerning a particular jumper was false, that fingerprint evidence was mishandled, that the Crown Prosecutor had engaged in misconduct, that expert evidence was unreliable, and that a police response to the Attorney General was untruthful.
Her Honour found that none of the grounds raised a doubt or question as to the applicant's guilt. Several had been raised and dealt with in earlier applications or in the original trial and appeal proceedings. The Court noted that Adamson J and McCallum J had each comprehensively addressed the applicable principles and the underlying facts, and that Fagan J had declined to revisit issues already determined. Lonergan J adopted and built upon that prior analysis without restating it in full.
On the question of photographic evidence, the Court considered detailed submissions concerning images of a jumper said to contain a blue pen line and police statements about those images. Her Honour concluded that the material did not raise any credible doubt warranting further inquiry. The ground concerning the purported falsity of the police response to the Attorney General was similarly rejected as lacking substance.
A solicitor who had previously acted for the applicant wrote to the Court offering to facilitate a demonstration that photographs had not been disclosed to the defence. Lonergan J declined to allow this, finding the proposed demonstration would be of no utility given the Court's findings on the underlying evidence issues.
Orders Made
- The application is dismissed.
Key Takeaways
- Under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW), the Supreme Court may only direct an inquiry or refer a matter to the Court of Criminal Appeal if it appears there is a doubt or question as to the convicted person's guilt, mitigating circumstances, or part of the evidence. Where that threshold is not met, the power is not enlivened.
- Where a matter has already been dealt with in prior proceedings or applications, the Supreme Court may refuse to consider a further s 78 application unless satisfied that special facts or special circumstances justify further action. No such circumstances were established here.
- Successive applications under Part 7 raising materially similar grounds do not acquire additional weight simply by repetition. Lonergan J expressly rejected the submission that grounds 1 to 6 had "cumulative force" when considered together.
- The Court declined to grant leave for supplementary submissions or a demonstration proposed by a solicitor communicating on the applicant's behalf, where the Court had already resolved the underlying evidentiary issues against the applicant.
- A successful conviction appeal in the Court of Criminal Appeal is not a prerequisite to a Part 7 application, but the absence of any unreasonable verdict ground in the original appeal is a relevant part of the procedural history that subsequent applications must contend with.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
Cases
- Regina v Gonzales [2004] NSWSC 822
- Gonzales v The Queen (2007) 178 A Crim R 232; [2007] NSWCCA 321
- 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
- Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 3) [2021] NSWSC 263
- Wood v R [2012] NSWCCA 21