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Court of Criminal Appeal 22 May 2024

Gonzales v R

[2024] NSWCCA 80

Assault & violence
CRIME APPEAL AGAINST CONVICTION WHETHER SELF DEFENCE NOT ADVANCED NO MISCARRIAGE OF JUSTICE

Citation: Gonzales v R [2024] NSWCCA 80
Court: Court of Criminal Appeal, NSW
Date: 22 May 2024
Judge(s): Leeming JA; Campbell J; N Adams J

Background

The appellant was convicted in the District Court of causing grievous bodily harm with intent, following a jury trial in November 2021. The conviction arose from an incident at a party at his home in the early hours of 30 May 2020, during which the victim suffered extensive facial injuries and bilateral skull fractures. The appellant was sentenced to six years' imprisonment with a non-parole period of three years and nine months.

At trial, the appellant was represented by a public defender briefed through Legal Aid. The defence case was a denial that the appellant had caused the victim's injuries. Following conviction, the appellant sought to appeal, representing himself in the Court of Criminal Appeal. He required a substantial extension of time to bring the appeal, as the non-parole period was nearing expiry.

The appellant's core complaint was that his legal team had promised to run self-defence and duress but had failed to do so, and that he had been prevented from giving evidence. He also alleged that letters he had written were not passed to the judge.

  • Whether a miscarriage of justice occurred because the defence was conducted contrary to the appellant's instructions
  • Whether trial counsel wrongly failed to advance self-defence in closing address
  • Whether the appellant was improperly prevented from giving evidence in his own defence
  • Whether correspondence written by the appellant was withheld from the trial judge
  • Whether, taking these matters together, the conviction should be set aside

Decision

The Court granted leave to appeal and the necessary extension of time, but dismissed the appeal on the merits. The Court proceeded to hear full argument on the substance of the appeal, given that the strength of the grounds was the most important factor in deciding whether to grant the extension of time.

On the question of self-defence, the Court found that the appellant's instructions at trial were a denial that he caused the victim's injury at all. On those instructions, there was no proper basis for self-defence to be left to the jury. Trial counsel had not failed in her duty by declining to run a defence inconsistent with the instructions she had received.

The appellant sought, belatedly in reply submissions, to produce documents suggesting he had in fact instructed his lawyers that he did cause the injury and was acting in self-defence. The Court declined to accept this account. Leeming JA found the appellant's recollection of what occurred at trial was demonstrably incorrect in important respects, whether due to limited appreciation of proceedings at the time or the passage of over three years.

On the question of giving evidence, both the solicitor and counsel provided affidavits, which the Court accepted. Campbell J was satisfied that the appellant was properly informed of his right to give evidence but received and accepted counsel's advice that it would be unwise to do so. The Court found no basis to conclude that the appellant was denied the opportunity to give evidence against his will.

Orders Made

• Grant of leave
• Requisite extension of time
• Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where a defendant's instructions are a flat denial of causation, there is no proper basis for counsel to advance self-defence in closing address, and a failure to do so does not constitute a miscarriage of justice.

  • A defendant's right to give evidence in their own defence is a fundamental principle, but the Court found that receiving and accepting counsel's advice against exercising that right does not, of itself, amount to a denial of that right or a miscarriage of justice.

  • Where an appellant claims their defence was run contrary to their instructions, and privilege is waived so that lawyers can respond by affidavit, the court will weigh the lawyers' accounts against the appellant's recollections, and may prefer the lawyers' evidence where the appellant's version is demonstrably inconsistent with the trial record.

  • Raising a materially different factual account for the first time in reply submissions, without having cross-examined the legal representatives on it, significantly undermines the credibility of that account.

  • The strength of the grounds of appeal is the primary consideration when an applicant requires a substantial extension of time to appeal against conviction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(b), 35(1)
- Evidence Act 1995 (NSW), s 191
- Public Health Act 2010 (NSW), s 10

Cases:
No cases were cited in the metadata or the provided text.