Citation: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 5) [2024] NSWSC 182
Court: Supreme Court of NSW
Date: 29 February 2024
Judge(s): Harrison CJ at CL
Background
The applicant was found guilty by jury of the murders of his sister, mother and father following a trial that concluded in May 2004. He was sentenced to three concurrent life sentences, and his appeal against both conviction and sentence was dismissed by the Court of Criminal Appeal in November 2007.
Since 2017, the applicant has made a series of applications to the Supreme Court under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), seeking a referral of his case back to the Court of Criminal Appeal. Four such applications were made between 2017 and 2021, each of which was dismissed or refused.
This decision concerned a fifth application, filed on 29 September 2023. The applicant contended that factual errors in previous proceedings remained unresolved, and that these errors touched on the forensic paint evidence and the absence of evidence that he had cleaned himself or disposed of evidence after the killings.
Legal Issues
- Whether the paint evidence linking the applicant to the crime scene raised an unresolved doubt or question as to his guilt sufficient to justify referral to the Court of Criminal Appeal under s 79(1)(b) of the Act.
- Whether the absence of forensic evidence that the applicant cleaned himself or disposed of evidence gave rise to a doubt or question as to his guilt under s 79(2) of the Act.
- Whether special facts or special circumstances existed under s 79(3) of the Act to justify the court taking further action on a fifth application.
Decision
Issue 1: The paint evidence
The applicant argued that the forensic evidence did not conclusively establish that the blue paint found on his jumper was the same paint used to write graffiti on the wall of the family home. The court acknowledged that the expert evidence at trial supported, at most, a conclusion that the two samples were "indistinguishable" rather than definitively identical (at [12]). However, the court noted that the paint evidence was only one piece of circumstantial evidence among many, and was not an indispensable intermediate element of the Crown's case that had to be proved beyond reasonable doubt before a conviction could follow (at [14]).
The court found that all evidence bearing on the paint issue had been available at trial and had already been raised and examined in previous applications (at [15]). No genuinely new evidence or argument was identified.
Issue 2: Absence of forensic evidence of clean-up
The applicant contended that the Crown's case required him to have washed blood from himself and disposed of evidence within approximately one hour, yet no forensic evidence of any such clean-up was ever found. He argued this absence necessarily gave rise to a doubt as to his guilt. The court acknowledged that the Crown's case theory did require that the applicant must have taken some steps to clean himself or dispose of evidence in order to appear unremarkable when meeting his friend shortly after the murders (at [21]).
Despite this, the court found that the argument had already been considered comprehensively in previous applications, including by Adamson J in Gonzales (No 1) and McCallum J in Gonzales (No 2), and had also been raised by defence counsel at the original trial (at [28]). No new or fresh argument was identified that had not already received thorough attention.
Issue 3: Special facts or special circumstances
The court concluded that the issues raised in the fifth application had been exhaustively explored and dealt with in prior proceedings, whether at trial, on appeal, or in earlier Part 7 applications. Harrison CJ at CL was not satisfied that special facts or special circumstances existed to justify taking further action under s 79(3) of the Act, and declined to consider or deal with the application (at [29]).
Orders Made
- The court refused to consider or otherwise deal with the application.
Key Takeaways
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Under s 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW), a court may decline to consider a Part 7 application where it is not satisfied that special facts or special circumstances justify further action, particularly where the same issues have already been exhaustively examined in prior proceedings (at [29]).
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Circumstantial evidence need not be individually established beyond reasonable doubt before it can contribute to a conviction; a single piece of circumstantial evidence is to be assessed as part of the whole of the Crown's case rather than in isolation (at [14]).
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Repeated reframing of previously considered arguments does not, without more, constitute new or fresh grounds capable of satisfying the threshold for a further review application; the court found no variation in the applicant's arguments that amounted to a genuinely new proposition (at [28]).
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The Supreme Court has the power to refuse to consider or deal with a Part 7 application outright, without conducting a full review of the underlying conviction, where prior proceedings have already addressed the relevant claims comprehensively.
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Evidence that was available at trial and raised in earlier applications cannot be characterised as "new evidence" in a subsequent Part 7 application, regardless of how that evidence is later characterised or contextualised by an applicant (at [15]).
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
Cases
- 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
- Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW); (No 4) [2023] NSWSC 323
- Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321
- R v Gonzales [2004] NSWSC 822