Alkhair v R

Supreme Court of NSW|2019-10-28|Before: McCallum J, James J, Adamson J

Judgment

HER HONOUR: Sef Gonzales was found guilty by a jury of the murder of his sister, his mother and his father. The trial concluded in May 2004. In September 2004, he was sentenced by James J to three life sentences. [1] In November 2007, his appeal against the convictions and sentences was dismissed by the Court of Criminal Appeal. [2]
In June 2017, Mr Gonzales (referred to here as the applicant) made an application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his convictions, contending that there is a doubt or question as to his guilt. That application was dismissed by Adamson J on 29 May 2018. [3]
The applicant has now made a second application under Part 7, asserting that "new material has come to light" as a result of the previous application. As I will explain, that assertion appears to be based on a misreading of a particular statement made by Adamson J in her Honour's reasons for dismissing the previous application. The new application also includes grounds for review that were not argued in the first application including assertions of prejudicial conduct on the part of the Crown prosecutor and alleged incompetence on the part of counsel appearing for the applicant at his trial.

Applications under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

The application is brought under s 78(1) of the Crimes (Appeal and Review) Act, which provides: 78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.
The Court's powers in considering such an application are addressed in s 79, which relevantly provides: 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. ... (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. ...
The applicant seeks referral of the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW), as allowed under s 79(1)(b) of the Crimes (Appeal and Review) Act (where the test under s 79(2) is met).
The consideration of an application under Part 7 is not an exercise of judicial power: Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783; [2013] NSWCA 383 at [12]. The purpose of such an application is remedial in nature and is "designed to overcome injustices that sometimes arise in the course of the administration of criminal justice": Re Application of Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [5] (Johnson J). The right to make an application is not intended to provide a convicted person with "yet another avenue of appeal after the usual avenues have been exhausted": Holland at [9].
The Court's authority to make a referral or direction under s 79(1) is enlivened only if the "gateway" in sub section (2) is "passed": Sinkovich at [25] (Basten JA). The question is whether "it 'appears' to the judge that the condition is satisfied": Sinkovich at [26]. In that case, Basten JA noted that the content of the condition as to which the judge must be satisfied is somewhat obscurely worded but that applications may involve matters of fact or errors of law: at [27] and [32]. His Honour said at [27]: "The necessary state of mind requires a 'doubt or question' as to (i) the convicted person's guilt, (ii) any mitigating circumstances in the case, or (iii) any part of the evidence in the case. However, neither the syntax nor the nature of the various elements permits any precise identification of the scope of the condition. Thus, a doubt or question as to a person's guilt could involve a doubt or question as to the procedural steps in the trial, admission of evidence, rejection of evidence, weight of the evidence, directions to the jury or any other matter upon which a finding of guilt is dependent."
There are decisions in which the test has been posed as being whether the material relied upon causes the person considering the matter "unease" or a "sense of disquiet" in allowing the conviction or sentence to stand: Application of Pedrana [2000] NSWSC 970; (2000) 117 A Crim R 459 at [28]; Regina v Suey [2001] NSWSC 543 at [18]; Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 260 at [3]; Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review Act 2001 (No 1) [2015] NSWSC 291 at [20]. That was the approach taken by Adamson J in the previous application at [6]-[8].
However, in Sinkovich, Basten JA rejected the "unease or sense of disquiet" formulation as a gloss on the words of the statute. His Honour said at [65]: "This language does not assist. There is no purpose served by adopting other words than the statutory language of 'doubt or question'. The 'material' on which the judge may base an opinion is not improved or added to by a document setting out the subjective beliefs of the applicant. Nor is it necessary for the applicant to demonstrate subjective grievance, to establish an appropriate basis for seeking an inquiry."
In accordance with those remarks, the approach I have taken is to determine whether, based on the material before me, it appears that there is a doubt or question as to the applicant's guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case.

The Crown case at trial

The Crown case was circumstantial. I do not purport by any means to summarise it all. What follows is a potted summary, drawn primarily from earlier decisions, which is intended to place the discussion that follows in context.
The Crown alleged that the applicant committed the murders because he wanted to inherit his parents' property. It was alleged that he had attempted to poison his mother about 10 days before the murders and there was compelling evidence to that effect. The trial judge found at [38] of the sentencing judgment that the applicant's motive for the murders was that "he was fearful that, because of his poor performance in his university studies, his parents might take his car away from him and might withdraw other privileges which had been granted to him and that he wished to succeed, without delay and as sole heir, to his parents' property".
The offences were committed on 10 July 2001. The trial judge summarised the facts as follows (at [19]-[30] of the sentencing decision): "[19] At approximately 4.30pm the prisoner entered Clodine's bedroom, where she was studying. The prisoner was armed with a baseball bat or a bat similar to a baseball bat and with one or two kitchen knives which the prisoner had taken from a knife block in the kitchen of the house. These two knives were the longest knives in the set of knives in the block. [20] Inside Clodine's bedroom the prisoner, not necessarily in this order, compressed Clodine's neck endeavouring to strangle her, struck her at least six separate blows to the head with the bat and stabbed her many times with one or both of the knives. He inflicted five major stab wounds to Clodine's neck and two major stab wounds to her chest or abdomen. The cause of Clodine's death was the combined effect of the compression of her neck, the blunt force head injuries and the abdominal stab wounds. After killing Clodine the prisoner remained in the house. [21] A few minutes after 6 pm the prisoner's aunt Emily Luna came to 6 Collins Street. She saw the prisoner's car parked in the carport. She rang the front doorbell of the house but no one answered and she left. Although no one answered the front doorbell, the prisoner was still inside the house. [22] Mrs Gonzales left her husband's office at about ten to five in the afternoon, with an employee named Patricia Tonel. Shortly afterwards Mrs Gonzales parted company with Patricia Tonel. Mrs Gonzales then drove home to 6 Collins Street in her car, arriving home at about half past five. She entered the house. [23] Very shortly after Mrs Gonzales entered the house the prisoner attacked her with one of the kitchen knives, while Mrs Gonzales was in the living/dining room of the house. The prisoner inflicted multiple stab wounds and cuts to Mrs Gonzales' face, neck, chest and abdomen. Mrs Gonzales' windpipe was completely transected, that is the upper half of the windpipe was completely severed from the lower half. [24] That Mrs Gonzales was attacked very shortly after entering the house is shown by inter alia the circumstances that she was still wearing the shoes she had worn to work and her handbag was found on the floor close to her body. Mrs Gonzales' usual practice when she arrived home was to take off the shoes she had been wearing outside the house and put them in a shoe cupboard and to put her handbag in one or other of two special places. [25] Mr Gonzales left the office at Blacktown at some time after his wife. Records of the use of his mobile telephone show that at 6.23 Mr Gonzales made a call on the mobile telephone to the landline at 6 Collins Street. This call was not answered. [26] Mr Gonzales drove to his home, arriving at about 6.50 pm. He entered the house. Very shortly after entering the house the prisoner attacked Mr Gonzales with one of the kitchen knives, while Mr Gonzales was still close to the front door. The prisoner inflicted multiple stab wounds to Mr Gonzales' neck, chest, back and abdomen. One of the stab wounds penetrated his right lung, another penetrated his heart and another partially severed his spinal cord. Vastly more force was used by the prisoner than was necessary to kill Mr Gonzales. That Mr Gonzales was attacked shortly after entering the house is shown by inter alia the place in the house where he was attacked and the circumstances that he was still wearing the clothes and shoes he had worn to work and his briefcase was found on the floor near his body. [27] At some time on the evening of 10 July 2001 the prisoner spray painted on a wall of the combined family room/kitchen in the house the words 'Fuck off Asians KKK'. [28] After killing the three victims the prisoner disposed of the knife or knives he had used in stabbing the victims, the bat he had used in striking Clodine and the shoes and clothing he had been wearing at the time of committing the murders. The shoes and clothing had become blood stained. None of these items have ever been found. [29] On the previous night, that is the night of 9 July 2001 the prisoner had made arrangements with a friend Sam Dacillo, who lived nearby, that they would meet at 8 o'clock on the evening of 10 July at Sam Dacillo's house and go out together for the evening. On 10 July the prisoner, after committing the murders, went to Sam Dacillo's house, arriving there at about 8 pm. The prisoner and Sam Dacillo, who, of course, knew nothing about the murders and was told nothing about the murders by the prisoner, went together, in the prisoner's car, to the City. They went to Planet Hollywood in George Street and then to a nearby video games centre. Later in the evening the prisoner drove back to North Ryde. He dropped Sam Dacillo off at Sam Dacillo's home at about 11.30 and then drove to 6 Collins Street. [30] At some time after arriving at his home the prisoner made an emergency telephone call to the Ambulance Service. A tape recording of the emergency telephone call was played at the trial. The precise time of the telephone call was not fixed by any evidence at the trial. In the emergency telephone call the prisoner told the operator of the Service that someone had shot his parents and that there was a lot of blood. In the telephone call the prisoner sounded distraught."
The Crown submitted to the jury in his closing address that the applicant had deliberately stayed out late with Sam Dacillo in the expectation that a relative or friend would find the bodies and the offensive message painted on the wall before the applicant returned to the house so that he would then arrive with a ready alibi for police called to the scene (Tcpt, 13 May 2004, p 1378(14)-(45)). However, that did not happen and in due course the applicant arrived home (so the Crown alleged) to the scene that he had left. The Crown submitted that this unexpected turn of events explained aspects of the triple-0 call made by the applicant in which (so the Crown submitted) he gave an account of events which inadvertently supported the case that he had committed the murders and which was inconsistent with his later account to the jury (Tcpt, 13 May 2004, p 1379(4)-(17)).
The matters relied upon by the Crown to support its circumstantial case against the applicant were summarised by Adamson J at [10] of her Honour's reasons (drawn from the trial judge's summing-up at pp 37-42) as follows: "(1) Evidence as to the timing of the deaths, the location of the deaths at the family home and the sightings of the applicant's car in the carport at the house between 4.15pm and 4.30pm and again at about 6.05pm; (2) Evidence of knives missing from the knife block in the kitchen and of the stab wounds to victims which were consistent with the use of such knives; (3) Evidence of blood-stained shoe prints in the house made by an unusual type and style of shoe in the size owned by Mr Gonzales which were missing (and which the Crown said had been used by the applicant and disposed of subsequently); (4) Evidence as to the blunt force injuries to Clodine and the dents in the wall of her bedroom which were consistent with the applicant's baseball bat, which was missing, being used to inflict the injuries; (5) Evidence that after having been informed by Detective Sheehy on 22 July 2001 that certain unspecified blood-stained clothing had been found and sent for scientific analysis the applicant supplied Detective Sheehy with a list of missing clothing, including three track suits on the following day, 23 July 2001; (6) Evidence of only a limited amount of blood on the applicant's person notwithstanding his assertion that he had hugged and tried to revive each of the deceased upon returning home on the night of the murders; (7) Evidence that the spray painter who was responsible for the graffiti was left-handed, as was the applicant, and evidence of the similarity between the applicant's handwriting and that of the graffiti; (8) Evidence that a spot of paint on the jumper which the applicant was wearing when the police arrived was indistinguishable in colour and composition from the paint used to spray the graffiti on the wall; (9) Evidence that the applicant asked for Emily Luna's (Mrs Gonzales' sister's) phone number when he arrived at Sam Dacillo's house (which the Crown said indicated that he knew that Ms Luna had come to the Gonzales family home that afternoon and might have seen his car in the driveway); (10) Evidence that, when the applicant was driving Mr Dacillo home on the evening of 11 July 2001, he slowed down when he passed the Gonzales family home and looked towards it; (11) The disparity between what the applicant said in his Triple-0 call ("my family is dead") and his account to police that he called Triple-0 as soon as he found out that his father was dead; (12) The absence of any real sign of forced entry, the evidence of damage to the entry points being limited to the cutting of a screen door; (13) The fact that no cash carried by either Mr or Mrs Gonzales was taken, which the Crown submitted excluded robbery as a motive; (14) Internet searches conducted by the applicant concerning ordering poisonous seeds, poisonous plants and how to make poisons from them; (15) Mrs Gonzales' illness between 1 and 3 July 2018, which, on the Crown case, was due to her having been poisoned by the applicant; (16) The applicant's written communications to the Campbell Soup Company, the Australian Federal Police and the Australian Quarantine Inspection Service."
The evidence in support of point (1) above was extensive. The detail of that evidence (as summarised by Adamson J) is set out below.
The Crown submitted, in respect of point (5) above, that the jury would readily infer that the applicant reported the alleged theft of his tracksuit pants because he was worried that his clothing had been found by police and that the scientific analysis would incriminate him in the murders.
The Crown also alleged that the applicant put forward false alibis, gave inconsistent accounts and left false trails. Those matters were summarised by the trial judge in the sentencing judgment as follows at [53]-[64]: "False Alibis and False Trails [53] At the trial the prisoner raised two alibis, both of which the jury must have rejected beyond reasonable doubt. [54] The first alibi was to the following effect. On the afternoon of 10 July 2001 the prisoner left his father's office at Blacktown at about 4.30. On the trip home the prisoner received a text message from Sam Dacillo that Sam Dacillo had a basketball game that evening and would be unable to meet the prisoner at 6 o'clock, as had previously been arranged between them. The prisoner arrived home at about 6 o'clock and drove into the carport. However, he did not enter the house. While he was in the car in the carport, he received a call on his mobile telephone from Sam Dacillo. An arrangement was made between the prisoner and Sam Dacillo that they should meet at 8 o'clock. The prisoner decided that, before meeting Sam Dacillo at 8 o'clock, he would visit a friend Raf DeLeon, who lived at Kings Ridge near Blacktown. The prisoner drove to the Blacktown area but was unable to find Raf DeLeon's house. As time was passing, the prisoner abandoned the attempt to visit Raf DeLeon and drove back to North Ryde in order to keep his appointment with Sam Dacillo at 8 o'clock. [55] The first alibi was constructed by the prisoner so as to account for inter alia the presence of the prisoner's car in the carport shortly after 6 o'clock, the prisoner being aware that his aunt had come to the house shortly after 6 o'clock and would have seen the prisoner's car. [56] The first alibi was advanced in a statement the prisoner made to police on the night of 10-11 July 2001 and the prisoner maintained the first alibi on a number of subsequent occasions, including in an interview by police at 6 Collins Street on 1 6 July 2001 and in further interviews by the police on 1 August and 3 August, 2001. [57] In January 2002 the prisoner abandoned the first alibi. He had concluded that there were insuperable difficulties with the first alibi. The first alibi was inconsistent with the sighting of his car in the carport at 6 Collins Street by Mariella Pavone between 4.15 and 4.30 in the afternoon of 10 July. The first alibi was not corroborated by, and was inconsistent with, information supplied to the police by Sam Dacillo and records of the use of the mobile telephones of the prisoner and Sam Dacillo. At the trial the prisoner in giving evidence accepted that the first alibi was 'a lot of lies'. [58] In January 2002 the prisoner began constructing a second alibi. In an intercepted telephone conversation with a friend on 10 January 2002 the prisoner told the friend that the new alibi would have to be 'solid', otherwise 'it could blow in my face again'. The second alibi was elaborated in a written statement by the prisoner dated 12 April 2002, which was provided to police on 22 May 2002. At the trial the prisoner gave evidence in chief in support of the second alibi. [59] The second alibi was to the following effect. On the afternoon of 10 July 2001 the prisoner left his father's office at Blacktown at some time before 4 o'clock. He arrived home, parked his car in the carport but did not go inside the house. He walked to a nearby service station in Wicks Road, North Ryde. After waiting a few minutes at the service station he caught a passing taxi and travelled in the taxi to Chatswood, where he alighted. He walked to the premises of a brothel at Chatswood. After waiting for a period of time inside the brothel he selected a prostitute, who he named, and had sex with her. Afterwards he walked to the railway station and caught a taxi back to his home. He did not enter the house. He got into his own car and drove his own car to Sam Dacillo's house. [60] The second alibi was constructed by the prisoner so as to account for inter alia the sightings of his car in the carport at the house by both Mariella Pavone and Emily Luna and to provide an explanation of how the prisoner's car, but not the prisoner himself, could have been at 6 Collins Street. [61] The second alibi was also constructed by the prisoner so that the alibi itself would provide an explanation of why he had not advanced the alibi earlier. The prisoner said that he had not told the truth earlier about his movements before meeting Sam Dacillo, because he was too embarrassed to reveal to members of his extended family that he had been with a prostitute on the night his parents were killed. The prisoner took steps to collect evidence which would support his second alibi, including pressuring the prostitute at the brothel to give false evidence to support the alibi and persuading a taxi driver who he met in Chatswood in January 2002 to make an untruthful statement, the terms of which were dictated by the prisoner, that the taxi driver recalled seeing the prisoner in the second week of July 2001, picking him up from a service station in Wicks Road, North Ryde and taking him to Chatswood Railway Station. [62] At the trial the second alibi was contradicted by evidence from the prostitute, evidence of records of the brothel which showed that the prostitute had not been at work at the brothel on 10 July 2001, evidence of the taxi driver and evidence of records of the driving by the taxi driver of his taxi on 10 July 2001. [63] Apart from raising the two false alibis, the prisoner laid many false trails, with the intention of misleading the police who were investigating the deaths of the members of his family and of diverting suspicion from himself. [64] These false trails included spray painting the words 'Fuck off Asians KKK' on the wall in the house, which was intended by the prisoner to mislead the police into supposing that the members of the prisoner's family had been the victims of racist crimes; telling police that after he returned home on the night of 10 July 2001 he had seen and heard some intruder leaving the house; suggesting to police that members of his family had been killed at the instigation of a prominent Philippines businessman, who he named; telling police that he had received threatening emails; reporting to police that in the early hours of 30 May 2002 an attempt had been made to break into the unit in which he was living; and claiming that on 31 May 2002 he had been abducted and assaulted. All of these assertions made to police were false and knowingly false."
At the trial, the applicant relied by way of alibi on the evidence as to when he was with Sam Dacillo, which he contended gave him a credible alibi from about 7.45 pm until emergency services arrived at the family home. He denied poisoning his mother; he said there was an explanation for the presence of his car at the house at the times identified; he contended that the evidence supposedly connecting him with the graffiti (similar hand-writing and left-handedness) was inconclusive; he put forward an innocent explanation for the similarity between the paint used in the graffiti and a spot of paint on the jumper he wore that night; he said that the evidence as to the times of death did not accord with other aspects of the Crown case; that there was a reasonable doubt based on multiple credible death threats received by the family; and that there was no evidence that he had cleaned up or disposed of any evidence.
Justice Adamson summarised the evidence about the timing of the deaths of the three deceased (and its significance) as follows: "[21] The time at which each of the three deceased had died was significant in the trial because the applicant had credible alibi evidence from about 7.45pm. Thus, if it appeared that even one of the deceased died after that time, it could substantially weaken the Crown case, which was that the applicant was responsible for all three murders. Because the applicant relied, in support of his application, on aspects of the evidence regarding the respective times of death of each of the three deceased, I propose to summarise the evidence led at trial, as well as the further evidence relied on by the applicant in support of his application, as to these matters. Expert evidence at trial Mr Gilchrist [22] District Inspector Jeffrey Gilchrist of the NSW Ambulance Service arrived at the Gonzales family home at about midnight on 10 July 2001 and found the bodies of the three deceased. He was asked at trial whether he was able to tell how long he thought the 'male person' (Mr Gonzales) had been dead. He responded: 'He had no pulse and he had rigor mortis, stiffening, of the face and the head; the head was moving sluggishly, which indicates that death had taken place several hours before we'd actually touched him.' [23] Mr Gilchrist's evidence about the deceased female he observed downstairs (Mrs Gonzales) was that: 'Her skin was cold and she had signs of having been dead for some time. Those signs were coldness, stiffness of the body and the head.' [24] As to the deceased female he observed upstairs (Clodine), Mr Gilchrist said: 'She was cold to touch and appeared to be dead for some time.' [25] Mr Gilchrist was asked: 'Are you able to put a time estimate on how long you thought the persons had been deceased?', to which he answered 'No, beyond one hour. By the coolness of the body, body temperature and the stiffening of the limbs, the neck and the skin.' [26] In cross-examination, Mr Gilchrist was asked to confirm that 'you cannot by looking at someone know what time they died', to which he responded 'No you can't, but you can know that they didn't die in recent minutes.' He was then asked about rigor mortis, a condition caused by chemical changes in the muscles after death, which causes the limbs of a corpse to stiffen. Mr Gilchrist said that rigor mortis appeared similar in all three bodies. He confirmed that rigor mortis does not begin to set in until a period between thirty minutes to an hour after death. [27] Mr Gilchrist confirmed in evidence at trial that he was able to form an opinion that the three deceased had not died within the previous hour, but otherwise could not tell what time they died. [28] The Crown brief, which was served prior to the trial, also contained an ambulance report which had been filled in by Mr Gilchrist (the Gilchrist report) which contained his estimate that at 12.03am on 11 July 2001 he had calculated that life in all three bodies had been extinct for 2-4 hours. This evidence was not led at the trial, although I assume that it was available to the defence, and was not before the Court of Criminal Appeal. Although the report was not before the jury, it was open to the applicant's counsel to use it in cross-examination, which did not occur. Dr Cala's evidence about the time of death [29] Dr Cala's evidence was that assessments of time of death are 'inexact and approximations only can at best often be given'. In cross-examination, he was asked why he could not be specific as to time of death, and replied: 'This is a subject that's been looked at for probably well over a hundred years, and nobody's been able to come up with any way to determine the exact time of death. And I am not going to be able to in my lifetime. But the reason for that is because the things that you look for vary so much from one individual to another who's died.' [30] Dr Cala was then asked about six variables and agreed that the 'rough guide' of body temperature decreasing by one degree an hour after death was 'as good as we can get despite all of the great efforts made by forensic pathologists, research, et cetera, in recognised countries in the world that try to improve knowledge in this area'. [31] Dr Cala was able to give approximations of the time of death of the victims, based on his observations of the degree of rigor mortis and lividity and temperature measurements at the scene of the murders, which he attended in the early morning of 11 July 2001. He estimated that both Mrs Gonzales and Clodine had died between 1 and 6pm on 10 July 2001. He could not say who died first as between them. [32] In his autopsy report in respect of Mr Gonzales, Dr Cala noted that, at the time of his examination of Clodine at approximately 7.10am on 11 July 2001, her rectal temperature was 23.6°C. At the time of his examination of Mrs Gonzales at 7.20am on 11 July 2001, her rectal temperature was 23°C. At the time of Dr Cala's examination of Mr Gonzales at 8am on 11 July 2001, his rectal temperature was 27.8°. The ambient temperature at the time of all three examinations was 15°C. [33] In the autopsy report of Mr Gonzales, Dr Cala estimated that Mr Gonzales died at some time between 3pm and 10pm on 10 July 2001. Dr Cala said: 'The estimation of the time of death of Teddy Gonzales is based on the body temperature of the deceased at the time of my examination at the scene, as well as the degree of rigor mortis which was present, and does not take into account any other factors such as when the deceased was definitely last seen alive or spoken to by phone. Given that the body temperature of Teddy Gonzales at the scene was several degrees higher than that of his wife's and daughter's, I believe it is likely he died up to several hours after his wife and daughter's deaths.' [34] In cross-examination Dr Cala was asked for his opinion as to the latest time that Mr Gonzales could still be alive. He answered: 'I favour a latest time for him based purely on my examination and the body temperature, up to about 10pm.'

Material relied upon in the previous Part 7 application

Later in her reasons at [43]-[53], Adamson J summarised the new evidence relied upon by the applicant in support of the application determined by her Honour, as follows: "Further evidence (not tendered at trial) relied upon by the applicant in support of the present application Evidence of the likelihood of significant blood transfer [43] The applicant relied on reports of Professor Hilton dated 22 February 2011 and 10 July 2012. Professor Hilton opined that, having regard to the defensive wounds sustained to the arms and hands of each of the three deceased, it was possible that the perpetrator sustained some injury in the course of the altercation. Professor Hilton also opined that the injuries sustained by Clodine were consistent with a protracted assault which occurred in two separate phases. The applicant also relied on autopsy reports by Dr Cala (referred to above) which indicated that the attacks on the three deceased were frontal attacks. He also relied on the evidence of Dr Tony Raymond, a consultant in forensic medicine who investigated the crime scene. Dr Raymond opined that Mr and Mrs Gonzales were upright when they were attacked. As set out in more detail below, the applicant submitted that these circumstances increased the likelihood that the three deceased fought back to defend themselves. Professor Hilton considered that, as the applicant was diagnosed with a skin condition (referred to below) that increased the likelihood that physical impact would leave a mark which would last for longer than in an unaffected individual, the absence of physical mark on the applicant's body after the murders was significant. [44] Professor Hilton also opined that, as the knife was unguarded, there was a chance that the perpetrator would have sustained wounds and that the chance of this occurring would increase with the number of stabbing penetrations. Further, he opined that there was a 'high level of probability' that significant amounts of blood would have been transferred from each of the three deceased to the perpetrator and that, accordingly, the perpetrator's skin and clothing could be expected to show extensive blood staining, which would be unlikely to be removed by rain. [45] The applicant relied on three academic articles authored, or co-authored, by Ulrike Schmidt on the subject of unintentional self-infliction of cuts to an assailant's hand in the course of knife attacks: Ulrike Schmidt et al, 'Cuts to the offender's own hand - unintentional self-infliction in the course of knife attacks' (2004) 118 International Journal of Legal Medicine 348; Ulrike Schmidt and Stefan Pollak, 'Sharp force injuries in clinical forensic medicine - Findings in victims and perpetrators' (2006) 159 Forensic Science International 113; Ulrike Schmidt, 'Sharp force injuries in "clinical" forensic medicine' (2010) 195 Forensic Science International 1. Evidence that the applicant suffered from dermographic uritcaria [46] The applicant also relied on evidence that he suffers from a skin condition. On 5 December 2011 Dr Liang Joo Leow, Consultant Dermatologist and Supervisor of Training at St Vincent's Hospital, examined the applicant and diagnosed him, in a report dated 14 December 2011, as suffering from the lifelong skin condition known as 'dermographic uritcaria'. This condition is a skin disorder characterised by wheals that develop within minutes of pressure tracing or marking on the skin with the fingernail or a blunt instrument. In other instances, the skin becomes raised and inflamed when stroked, scratched, rubbed, or slapped. Both Dr Leow opined as to the possibility that, if the applicant were engaged in a physical struggle, there would be physical signs on his skin which could last for hours, and significantly longer than would be likely for a person without such a skin condition. [47] Professor Hilton said in his report of 22 February 2011: 'A person suffering from either of these conditions [urticarial/dermographism], but especially the latter (a variant of the former) could be expected to show wheals following modestly forceful, particularly linear, contacts such as may be sustained in a struggle. These wheals may persist for hours or longer. There is no evidence available to me that Sef Gonzales was examined by a Medical Practitioner or anyone else in the immediate post-event period who might be in a position to confirm or exclude such phenomena. Those who did see him in the immediate post-event period are silent on this point.' [48] In his subsequent report in 2012, Professor Hilton said that the obvious manifestations of dermographism may disappear in less than an hour, although they may last 'for several days' Further evidence of the timing of the deaths Mr Gilchrist's report [49] The applicant relied on Mr Gilchrist's report referred to above and, in particular, his estimate that the three deceased had died within 2-4 hours of his arriving on the scene at about midnight on 10 July 2001. Professor Duflou's report [50] The applicant relied on a report of Professor Duflou dated 15 March 2018, which the applicant addressed for the first time in his third set of submissions dated 23 May 2018. The applicant has not provided the letter of instruction to Professor Duflou. The other two documents identified by Professor Duflou as having been provided to him were the autopsy report of Mr Gonzales; and p1376 of the trial transcript of the Crown Prosecutor's closing address relating to the Crown case as to times of death. [51] Professor Duflou applied the 'Henssge nomogram technique' to estimate the time of death of each of the three deceased. The technique is based on an assessment of the differences between the rectal temperature of a body and the ambient temperature. Professor Duflou confirmed that he had not taken into account any evidence related to 'witness and telephone records'. He qualified the opinion referred to below with the statement that: 'determination of post mortem interval is inherently unreliable'. [52] Professor Duflou purported to estimate the time of death of each of the three deceased, as well as a 3 hour range on either side of the estimated time of death with, in his words, a '95% level of certainty'. He estimated Mr Gonzales' death occurred at 5.40pm on 10 July 2001, or within a range between 2.40pm and 8.40pm on 10 July 2001. Professor Duflou estimated that Mrs Gonzales and Clodine were killed at approximately 11am and 10.50am respectively, or between 8am and 2pm on 10 July 2001. [53] Professor Duflou noted (presumably by reference to the Crown's closing address) that the estimated times of death were potentially in conflict with the timeframe advanced by the Crown at trial. However, he concluded that: '[the] approximately 6 hour difference between the death of Teddy relative to that of Mary and Clodine would remain not unreasonable.'

Material relied upon in the present application

Section 79(4) of the Crimes (Appeal and Review) Act provides that, although proceedings under that section are not judicial proceedings, the Court may consider any written submissions made by the Crown with respect to an application. The parties exchanged the following submissions: 1. applicant's written submissions dated 8 August 2018; 2. Attorney General's written submissions dated 10 September 2018; 3. applicant's written submissions dated 12 September 2018; 4. Attorney General's written submissions dated 12 October 2018; 5. applicant's final submissions in reply dated 31 October 2018.
The only material attached to the applicant's submissions in support of the present application was one of the two reports of Professor Hilton provided to Adamson J (the report dated 22 February 2011), extracts from the statements of Detective Elliott and Sergeant Betts and extracts from the trial transcript. The Court was also provided with five volumes of material comprising the four volumes of trial transcript and the volume of material provided to Adamson J in support of the previous s 78 application.

Ground 1: an indispensable, intermediate fact in the circumstantial case?

The applicant seeks review of his convictions on four grounds. The first is: "An indispensable, intermediate aspect of the Crown's circumstantial case has not been established beyond reasonable doubt."
Some explanation of this ground is required. It is obvious from the evidence concerning the injuries sustained by the three victims that the person who committed the murders could not have done so without coming into contact with significant amounts of blood. It is doubtful whether expert evidence was needed to establish that proposition but it was nevertheless provided in the new material relied upon by the applicant to support the previous Part 7 application, being the reports of Professor Hilton considered by Adamson J in the passages set out above.
Professor Hilton is a medical practitioner practising principally as a forensic pathologist and consultant in forensic medicine. He provided reports dated 22 February 2011 and 10 July 2012. In his first report, he stated that the nature of the injuries suffered by the victims "would indicate a high level of probability of contamination of the person and clothing of the assailant(s) by the victims' blood" and that "the clothing worn by the assailant(s) would be expected to show fairly extensive blood staining". He concluded that "the quantity and distribution of shed blood would indicate a strong likelihood of the assailant(s) person and/or clothing being contaminated with that blood." In his second report he reiterated that the Gonzales family killings were "quite markedly bloody affairs" and said that he would expect there to have been a substantial transfer of blood from the victims to the assailant or assailants.
A number of people saw the applicant on the night in question after the time when, according to the Crown case, the murders had been committed, including his friend Sam Dacillo (who he had agreed to meet at 8.00pm) and, later, ambulance officers and police who attended the scene after the applicant called triple-0. None of those people noticed any blood on the applicant or his clothes. It follows that, if the applicant committed the murders, he must have cleaned up and changed clothes afterwards, before meeting Sam Dacillo. Indeed, based on something the applicant later told police (that three pairs of his tracksuit pants had gone missing from the house), the Crown invited the jury to infer that the applicant changed tracksuit pants after each murder, presumably so as to avoid alarming each next victim by his bloodied appearance (see for example closing address at Tcpt, 13 May 2004, p 1377(35)-(37)).

Shepherd

The applicant makes a number of points about this aspect of the Crown case. The first is based on the principles stated in Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56. For the purpose of this discussion, it is convenient to refer to the acts in question (cleaning up, changing clothes and disposing of weapons and bloodied clothing and other items) as the clean-up. The applicant submits that the clean-up was an indispensable, intermediate aspect of the Crown's circumstantial case which was accordingly required to be proved beyond reasonable doubt. He further submits that the trial judge ought to have given a Shepherd direction in respect of the clean-up aspect of the case.
I do not accept that analysis. As explained in Shepherd, circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. If the basic fact is indispensable to an inference of guilt, it must be proved beyond reasonable doubt and a Shepherd direction is required. The applicant's argument inverts that logic and does not reflect the Crown case.
The Crown did not set out to prove, as a basic fact, that the applicant did the clean-up and invite the jury to draw an inference, from that fact, that the applicant committed the murders.
Far from being a basic fact forming part of the circumstantial case against the applicant, the absence of any direct evidence of the clean-up was a matter that detracted from the Crown case and on which some emphasis was placed by counsel for the applicant at trial. The Crown prosecutor grappled with the lack of evidence on that issue, as he had to, by inviting the jury to accept that, immediately after committing the three murders, the applicant must have cleaned himself up, changed his clothes and disposed of a number of items including the kitchen knives, the baseball bat, three sets of blood-stained clothing and blood-stained shoes before travelling to meet Sam Dacillo. In accordance with the evidence as to the timing of the three murders, it was accepted by the Crown that the applicant would have had to do all of those things within the space of approximately an hour.
The applicant relied on three passages from the Crown's closing address directed to that issue. The first was when the Crown was addressing the jury as to the case that had been put forward by the applicant in his evidence. It is helpful to explain that the applicant had given evidence that, when he arrived home, he heard the side gate slamming shut and he chased after a person he assumed was the person who had murdered his family. The whole of the relevant passage from the Crown's closing address is set out below (Tcpt, 13 May 2004, pp 1377-1378. "Now ladies and gentlemen, somebody killed Clodine at 4.30 or thereabouts, waited an hour, killed Mary at 5.30, or thereabouts, waited an hour and a quarter to an hour and a half till about quarter to 7 or so, waited patiently, waited whilst Emily Luna rang the front doorbell for five minutes. Just stood there in front of the door, waited patiently, all that time until about quarter to 7 when Teddy arrived home, killed Teddy, and then remained at the place. If the accused's story is to be believed, waited and waited and waited and waited from quarter to 7 or so when Teddy was killed, until quarter to 12 when the accused arrived home, this is a killer with real nerves of steel. Having slaughtered three people just remains there waiting for young Sef to get home. Then what happens when Sef gets home, according to his version, he's bending over his father, no no, that is not the right time to attack him, he's bending over his mother, no no, that's not the right time to attack him, he goes up to his sister and bends over his sister, no that is not the right time to attack him. He comes downstairs and that is when they decide, oh we're out of here. Just to make it a little bit easier for Sef to chase after them, let's close the side gate making a bit of noise so that he knows that we're leaving so that he can run out after us. I mean ladies and gentlemen, it only has to being stated to show how preposterous it is. That is not what happened at all. What happened was the that the accused killed his sister, the accused then waited an hour to kill his mother, the accused then waited an hour and a quarter or so to kill his father, and then he cleaned up himself, got rid of the clothes that he'd used, which was his father's 'Human' brand sports shoes, his three track suits, one for Clodine, one for Mary, one for Teddy, just in case they turned around and saw him and got alarmed and ran away. The knives from the kitchen, the glove or gloves from the back garden. He then disposed of all of those items and the bat between about quarter to seven, when Teddy died, and quarter to eight. So he had plenty of time to get rid of all that stuff."
The Crown returned to the issue later, in the context of addressing evidence concerning a paint stain on the applicant's jumper (which was said to match the paint used to spray the anti-Asian message on the wall). Again, for context, it is helpful to explain that the applicant had given evidence that when he arrived home, he hugged all three members of his family and tried to revive them (Tcpt, 12 May 2004, p 1274(40)-(57)). The Crown said (Tcpt, 13 May 2004, p 1390(46)-(53)): "Quite a coincidence that he had that very jumper on that night. The amount of blood on him, it's impossible that he did what he claims to have done and got that little blood on him. He has obviously killed the three members of his family with other clothes on or at least over the top. He has disposed of those clothes and then when he has gone in with his neighbour Shane he has got a little bit of blood on him. If you look at the evidence he has got about the same amount of blood on him as Shane does."
Finally, at Tcpt , 13 May 2008, p 1398(16), the Crown said: "Finally, ladies and gentlemen, we say that you would conclude overall the accused killed his father, mother and sister over the course of two and a half hours. He cleaned up for the next hour or so and then went out with Sam Dacillo, perhaps thinking that he was giving himself a sort of alibi."
Having regard to those aspects of the Crown's closing address, it may be accepted that it was an aspect of the Crown case that the clean-up occurred.
Counsel for the applicant at trial made good use of the absence of evidence on that issue, arguing that, if the applicant had disposed of items of the kind suggested within such a short time frame that evening, they would have been found by police. The argument rested on an expectation that police would have conducted a thorough search of all possible clean-up and disposal sites. However, there was no evidence in the trial that they had in fact undertaken that kind of comprehensive search.
Mr Terracini, who appeared for the applicant at the trial, put submission as follows in his closing address to the jury at Tcpt, 17 May 2004, p 1428(6)-(31): "If we return then to the submission that I put to you on Friday, how then and by what means does he dispose of apparently the clothing, the weapons or weapon, et cetera? Or indeed the paint, et cetera? Now, is it suggested that he does it before his father comes home? It is hardly likely. See, he only has this window of opportunity to clean up as it were and dispose of the gear that the Crown says he must be wearing. Now, again, there is no evidence that any of that gear has been found or located. There is no evidence that one would expect, or one wouldn't expect, that the police would search high and low round at least the close area of the house and up to the corner, or even as far as shopping centres, et cetera. Drains, garbage bins. That accords with common sense. One wouldn't expect the police to be searching, for instance, everything all the way to Chatswood or something, and that we say is quite an important point. Because the longer he's away travelling to dispose of the murder clothes, et cetera, the more time it takes, the more opportunity for observation, the more opportunity for somebody to remember that they saw a vehicle of that type rego, of that type car, of that description. Not a word."
The trial judge's summing-up included reference to that submission as to the expectation that police would have searched the near neighbourhood thoroughly and that nothing was found. His Honour added that if the accused had disposed of the items, he would have "had to have travelled away from the near vicinity of the house…with a great likelihood of someone observing him" (Tcpt, 19 May 2004, p 166). However, as explained by the Attorney General in his written submissions in the present application, there was in fact no evidence that a comprehensive search of the kind suggested had been carried out. The submission was based on the supposed expectation as to what police would have done.
If there was incontrovertible proof that the applicant could not have undertaken the clean-up, there would be a doubt as to his guilt. It does not follow that the clean-up was an indispensable, intermediate step in the reasoning process towards an inference of guilt. The absence of evidence of any clean-up or disposal of items was simply part of the matrix of the Crown's circumstantial case.
The trial judge gave the usual direction about drawing inferences in a circumstantial case, including the following: "Before you could find the accused guilty on any charge on the basis of circumstantial evidence you must first determine which of the circumstances sought to be relied upon by the Crown have been proved to your satisfaction. You must then determine whether, having regard to all of the evidence and having regard to the submissions made by counsel, the only reasonable explanation of the circumstances you find proved, the only inference which can be drawn beyond reasonable doubt, is that it was the accused who did the acts causing the death of the victim. If there is any other reasonable explanation of those circumstances consistent with the innocence of the accused you could not find the accused guilty." (Summing-up at p 34).
A Shepherd direction concerning the clean-up was not required and indeed would have been misconceived.

The so-called "new exculpatory material"

Separately, the applicant submits that there is new exculpatory material to establish that the clean-up did not occur. The submission is based on a paragraph in the reasons given by Adamson J at [20]: "Lack of evidence of any clean up There was no evidence to indicate that the perpetrator(s) cleaned themselves at the crime scene; no evidence of bloodstained clothes or bloodstained towels at the crime scene; no evidence that a change of any blood soaked clothing or footwear occurred at the crime scene; and no forensic evidence of blood detected in any of the family's three vehicles. The evidence was that, despite the investigation and forensic examination of all possible clean up and disposal sites in the area that would have been available to the perpetrator, nothing was detected in any such site to indicate that any clean up or disposal had occurred."
The applicant characterises the last sentence of that paragraph as a finding of fact made by Adamson J excluding the possibility of any clean-up or disposal of items by the applicant. He further contends that that finding was based on evidence considered by her Honour which was not before the jury in the criminal trial. Relying on the fact that the remarks appear under the heading "the relevant facts", the applicant submits that her Honour found that "all possible clean up and disposal sites that would have been available to the applicant" were investigated, forensically examined and excluded, "thus establishing that the applicant did not clean up or dispose of evidence".
At paragraph 28 of his primary written submissions, the applicant submits (emphasis added): "In previous proceedings, the applicant had relied on the absence of any evidence of the clean-up of blood transfer or the disposal of evidence. In the present application, the applicant principally relies on the confirmation of the existence of evidence which excludes all possible inference that he may have cleaned up and disposed of evidence."
That is clearly a misunderstanding of the reasons of Adamson J. A number of the applicant's arguments proceed from that mistaken premise. In the section of the reasons in which paragraph [20] appears, her Honour was summarising relevant aspects of the trial based on the material before her. Her Honour did not purport to make any new findings of fact and in any event could not, on the material before her, have made any finding in the terms suggested. The material before her Honour is listed at paragraph [7] of the reasons. Apart from the written submissions, the only new material was the folder of material provided by Nyman Gibson Miralis Lawyers. That folder included material from a variety of sources, some new, some drawn from the original police brief. That evidence amply established that there was a great deal of blood in the house and that the person who killed the victims would have come into contact with blood. It also established from statements from the police brief that people who saw the applicant observed him to have no blood on him. However, it was not directed to the investigations undertaken by police and was not capable excluding "all possible inference that [the applicant] may have cleaned up and disposed of evidence" (the words used by Adamson J).
The most likely explanation is that, as noted in the submissions of the Attorney General, the wording of paragraph [20] appears to have been taken from the applicant's own written submissions made in support of his first Part 7 application. A comparison of Adamson J's reasons at [20] with the relevant section of the applicant's submissions reveals that her Honour was there summarising (and implicitly assuming the accuracy of) what was put in the submissions at pars 48-57. In particular, the submissions said at par 55: "An extensive, methodical and thorough investigation and forensic examination by police of all possible clean up and disposal sites in the area (given the time and opportunity) that would have been available to the applicant, resulted in a negative finding."
A footnote to that paragraph said "during the trial, the Crown presented no evidence of any clean up or disposal of forensic evidence by the perpetrator(s)".
The applicant submitted that this so-called new exculpatory evidence excluding all possible inference of the applicant cleaning-up or disposing of evidence was not placed before the jury, who were therefore deprived of "their entitlement to consider the whole of the evidence". There is no basis for the assertion that relevant evidence was kept from the jury. Nor is Adamson J to be understood to have made a finding of fact to the effect asserted. There was no new evidence before her Honour to support such a finding.

Reasonable doubt as to alleged one-hour opportunity to clean up

Separately, the applicant submits that there is a doubt as to the one hour opportunity the Crown says the applicant had to clean up and dispose of evidence. As noted in the Attorney General's written submissions, arguments about those matters formed a significant part of the applicant's defence at trial and were emphasised several times in defence counsel's closing address.
The applicant notes that it was the Crown case that Teddy Gonzales died at about 6.45 pm and that the applicant accordingly had about an hour to clean up before meeting Sam Dacillo at about 7.45 pm. He submits that the only objective evidence of Teddy's last sign of life was his use of his mobile phone at 6.23 pm and that "the balance of the Crown case with respect to Teddy's time of death relies on the assumption that Teddy was heading home at 6.23 pm having made the call approximately 20 minutes' drive from the crime scene".
The applicant seeks to put that aspect of the Crown case in the context of the evidence of the Crown's forensic pathologist, Dr Cala, who gave evidence in cross-examination that the latest time Teddy could have been alive was "up to about 10pm". It is important to note that Dr Cala explicitly based that estimate "purely" on his examination of the body and the rectal temperature.
In the submissions on the present application, in summary, the applicant again emphasises the possibility (based on Dr Cala's evidence) that Teddy Gonzales was killed as late as 10pm or at least up to "several hours" after Mary Gonzales was killed. On that basis, the applicant submits that there is a doubt as to the period of one hour the Crown submits he would have had to clean up.
Separately, the applicant identifies a series of reasons for inferring that the period of time available to him for the purpose of cleaning up and disposing of evidence could well have been less than an hour including the timing of his meeting Sam Dacillo (who lived very close to the applicant) and a supposed concession by the Crown that it would have taken "an hour or so" to clean up such a large scale blood transfer: Tcpt, 14 May 2004, p 1398(20). The applicant submitted that if, as the Crown alleged, the applicant had cleaned-up for "an hour or so" then there would have been no time left for the applicant to have travelled to dispose of a large volume of evidence and return in time to meet Mr Dacillo (applicant's submissions at pars 35-36 and reply submissions at par 6). The relevant passage from the Crown's closing address is set out at [39] above. It was a submission; it does not amount to a concession that the clean-up and travelling to meet Sam Dacillo could not have been completed in anything less than an hour.
In any event, those issues were fully dealt with at the trial. No basis has been established for doubting the applicant's guilt on the basis that he had insufficient time to clean up and dispose of evidence.

Possibility of continuation of the clean-up after 11:30pm

Finally in support of ground 1, the applicant relies on a remark in the reasons of Adamson J at [78] where her Honour said: "The absence of evidence of injury to the applicant and the absence of evidence of blood on his clothes or skin after 8.00 pm on the night of the murders do not, when taken separately or together, give rise to a doubt or question as to the applicant's guilt. The evidence as to the timing of the murders relative to the applicant meeting Mr Dacillo indicates that the applicant was afforded an opportunity to clean his skin and dispose of bloodied clothing before being seen by anyone else. The evidence also left open the possibility of the applicant continuing to dispose of evidence of his involvement after the time of his arrival home around 11:30 pm, before dialling 000."
The applicant notes that the point made in the final sentence was not part of the Crown case at trial but that it is "reflected in the decision of Adamson J". The applicant's submissions then present arguments against the possibility of the disposal of evidence during that later period of time.
As this is an issue remarked upon by Adamson J which was not part of the Crown case at trial, I do not see how it can properly form the basis of a doubt for the purpose of the present application. The matter as to which the applicant needs to demonstrate a doubt or question is his conviction by the jury. The case run by the Crown, as argued in his closing address, was that the applicant left the home after murdering his family in the expectation that a relative or family friend would turn up and find the bodies while he was out with Sam Dacillo, giving him a ready alibi. It was no part of the Crown case at trial that the applicant needed or wanted to continue his cleaning up after his return to the house. Justice Adamson's observation is, with respect, not relevant to the present enquiry.
The applicant concluded his submissions in support of Ground 1 with the following argument: "The fact that there was no significant blood transfer found on the applicant consistent with him committing three ferocious stabbing murders, and he was not found to be in possession of any murder weapons or bloodstained clothing/footwear, and there was absolutely no evidence that he had cleaned up any blood nor disposed of any evidence, constitutes a reasonable doubt which the jury should have found. Quite evidently, significant amounts of blood transfer and large volumes of evidence indispensable for the commission of the three murders could not have simply vanished. This gives rise to a doubt as to the applicant's guilt."
Once it is understood that there was no new evidence before Adamson J excluding the possibility that the applicant disposed of any evidence, it is clear that all of those issues were fully dealt with at the trial. I am not persuaded that there is any doubt or question as to the applicant's guilt based on the matters raised in the first ground for the application.

Ground 2: conduct of the Crown prosecutor

Ground 2 is: "There has been a miscarriage of justice by reason of the prejudice occasioned by the Crown prosecutor."
This ground also rests at least in part on the remarks of Adamson J at [20] discussed above. It concerns the conduct of the Crown prosecutor in submitting to the jury that the applicant had cleaned up and disposed of evidence. The applicant submits that, in advancing that argument, the Crown breached his duty as a prosecutor because there was no valid evidentiary basis for it and it was instead grounded only in the prosecutor's opinion. It was further submitted that the supposed finding of Adamson J at [20] indicates that the Crown's submission was in fact contrary to exculpatory evidence kept from the jury.
There is no merit in this ground. To the extent that the submission relies on the reasons of Adamson J, as already explained, it is based on a misconception as to what her Honour said. Otherwise, the Crown case was a circumstantial case and it was well open to the Crown to make the submissions he did. So much was implicitly acknowledged in the applicant's submissions in support of the previous Part 7 application where it was noted at par 48 that the Crown had "conceded" at trial that "due to the lack of blood on the applicant's skin or clothing, the applicant must have cleaned himself up". The absence of forensic evidence to support the inference that the applicant cleaned himself up and disposed of weapons and bloodied items does not mean it did not happen. That was an argument open to the applicant but it has been put to a jury and rejected.
The applicant sought to draw some support for this ground from the decision of the Court of Criminal Appeal in Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21, pointing out that the Crown prosecutor in Wood was the same as in the applicant's trial. He sought to draw an analogy between the present complaint and the complaint recorded in Wood at [631] that the Crown prosecutor had improperly and without any basis in evidence offered his own opinion as to the depression suffered by the victim and the "typical" behaviour of persons who commit suicide, thereby seriously prejudicing the accused in that trial. There is no analogy with the present case. The proposition that the applicant had cleaned up and disposed of incriminating evidence was not offered as the Crown's opinion; it was an obvious available inference and the Crown was entitled to address it.
I am not persuaded that there is any doubt or question as to the applicant's guilt based on the matters raised in ground 2.

Ground 3: alleged incompetence of the applicant's trial counsel

Ground 3 is: "There has been a miscarriage of justice by reason of the incompetence of the Applicant's trial counsel."
The applicant contends that he was incorrectly advised by his former legal representatives. In particular, he contends that he was incorrectly advised that the "incompetence of defence counsel" could not be raised as a ground in a Part 7 application. The suggestion appears to be that he became aware that he could have submitted such a ground from the reasons of Adamson J at [92] where her Honour said (after rejecting a submission based on the failure to put a particular statement characterised as expert opinion evidence before the jury): "It was therefore a matter for the applicant's counsel at trial to determine whether to cross-examine Mr Gilchrist by reference to it. It was not suggested that there was any incompetence of the applicant's trial counsel in not introducing this aspect of Mr Gilchrist's report into evidence."
As already noted, the applicant did not put on any evidence to establish the assertion that he was given incorrect advice in relation to the previous Part 7 application. I note that the applicant's submissions are silent as to the fact that he had the opportunity, which he exercised, to appeal against his convictions. He was represented in the appeal by senior and junior counsel. No ground of incompetence of counsel was included in the appeal. The present ground has all the semblance of an aspirational reconstruction of the case that might have been.

Principles to be applied

As already explained, the issue to be determined before the power to make a direction or referral under s 78 is enlivened is whether it appears that there is a doubt or question as to the applicant's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. The inclusion of the reference to "mitigating circumstances" might be thought to be relevant primarily to an application for an inquiry into a sentence rather than a conviction: cf Li v Attorney General for New South Wales [2019] NSWCA 95; (2019) 368 ALR 242. In any event, it is accepted that the section provides a low hurdle for the power to direct an inquiry: Li at [15] per Basten JA, White JA agreeing at [69].
For the purpose of considering whether such a doubt or question appears on the basis of ground 3, it is necessary to have in mind the principles concerning appeals based on a complaint about trial counsel's conduct of the trial. Those principles require an appellate court to give due deference to the forensic judgment of trial counsel and the inherent limitations on retrospective review of such judgment. In R v Birks (1990) 19 NSWLR 677, Gleeson CJ said at 683: "As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case."
His Honour reiterated those remarks as Chief Justice of the High Court in TKWJ v R [2002] HCA 46; (2002) 212 CLR 124 at [8], saying: "Decisions by trial counsel as to what evidence to call, or not to call, might later be regretted, but the wisdom of such decisions can rarely be the proper concern of appeal courts. It is only in exceptional cases that the adversarial system of justice will either require or permit counsel to explain decisions of that kind. A full explanation will normally involve revelation of matters that are confidential. A partial explanation will often be misleading. The appellate court will rarely be in as good a position as counsel to assess the relevant considerations. And, most importantly, the adversarial system proceeds upon the assumption that parties are bound by the conduct of their legal representatives."
The principles as to the proper approach of the appellate court bearing in mind the restraint required by those authorities were recently summarised in Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419 at [31] (Macfarlan JA, Rothman and Bellew JJ agreeing at [72] and [73]) as follows: "(1) To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel's conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial. (2) Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf. (3) Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the appellant's legal representatives' reasoning at trial or to evidence as to communications between the appellant and those representatives. (4) The ultimate question for an appellate court is whether the appellant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open."
As already indicated, I am mindful of the need to consider those principles in the context that, on the present application, the applicant does not have to satisfy the test for appellate intervention. The question is whether it appears that there is a relevant doubt or question.

The clean-up and disposal issue

The first topic addressed in support of ground 3 is the clean-up and disposal issue. The first point relating to that topic is that defence counsel "failed to cross-examine the relevant witnesses to establish that the applicant did not clean up or dispose of evidence, as now confirmed in the decision of Adamson J at [20]". As already explained, the submission misconceives what her Honour said.
The only specific evidence identified by the applicant in support of that submission is the evidence of Detective Elliott who said in his statement at paragraph 7: "At 7:30 pm that evening I conducted a luminol examination inside the premises. (Luminol makes blood photoluminesce or glow in darkness for a short period of time. It is a liquid chemical that is sprayed directly onto surfaces). I examined the ground floor bathroom hand basin, laundry tubs and kitchen sink surfaces and saw no photoluminescence, characteristic of the presence of blood on those surfaces. I also examined the 1st floor bathroom shower and hand basin and saw no photoluminescence on those surfaces."
Detective Elliott gave oral evidence that he "participated in the Luminol examination" but the above statement (in particular, that he saw no photoluminescence) was not elicited by the Crown in his evidence-in-chief. He was not cross-examined at all (Tcpt, 20 April 2004, p 473-479). The applicant submits that cross-examination of the detective as to the apparent absence of blood would have cast considerable doubt on the Crown case that the applicant had cleaned up.
The applicant submits that, because it was not adduced by the Crown, paragraph 7 of the Detective's statement was kept from the jury: applicant's written submissions dated 12 September 2018 at par 9. In his submissions dated 31 October 2018, the applicant further submitted (in response to a point made by the Attorney General) that, because the evidence was not adduced by the Crown, it was to be regarded as new evidence. To support that submission, the applicant cited the decision in Wood at [707] where the Court said: "The law makes a distinction between 'new evidence' and 'fresh evidence'. 'New evidence' is evidence that was available and not adduced at the trial. 'Fresh evidence' is evidence which either did not exist at the time of the trial or, if it did, could not then have been discovered by an accused exercising due diligence: R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63] (Kirby J, Mason P and Levine J agreeing)."
That is a misapprehension of the process. In order to be "new evidence", evidence must be evidence that was not adduced at the trial but not all evidence that was not adduced at the trial is properly regarded as new evidence in the relevant sense. The point the Attorney General was making was that par 7 of Detective Elliot's statement was included in the police brief and so there was every opportunity for the applicant to have that evidence put before the jury. That misapprehension in turn has informed the applicant's misapprehension as to the nature of the statement made by Adamson J. The applicant considers that her Honour must have relied on the evidence of Detective Elliot in reaching the supposed finding of fact at [20] of her Honour's reasons. As already explained, that misconceives the task her Honour performed.
The applicant sought to support the submission that the evidence should have been adduced in cross-examination by reference to the remarks made by Adamson J at [92]. In that part of the reasons, her Honour was addressing a submission made in relation to the untendered report of a paramedic, Mr Gilchrist, as to how long the three victims had been dead. Her Honour said, in that context "there was no reason to put the Gilchrist report before the jury, as such evidence is conventionally adduced orally". The applicant's reliance on that remark (applicant's written submissions in reply dated 12 September 2018 at par 10) is misplaced; her Honour was addressing the form in which opinion evidence is ordinarily given in proceedings before a jury.
In any event, I am not persuaded that the decision not to cross-examine Detective Elliot suggests any incompetence. There was no evidence in the Crown case to suggest the applicant washed up in the house, which left counsel free to take full advantage of the issue in his closing submissions (as he did).
Secondly, the applicant submits that defence counsel was incompetent in failing to seek a Shepherd direction in relation to the clean-up issue. For the reasons given in relation to ground 1, I do not accept that submission.
Thirdly, the applicant submits that, in light of the "clear infringement by the Crown prosecutor in his closing address to the jury in relation to the clean-up and disposal issue" (addressed in ground 2), defence counsel was incompetent in failing to seek a direction from the trial judge to address the infringement or to seek to have the jury discharged. For the reasons already given, I reject the submission that there was any breach of duty on the part of the Crown prosecutor and it follows that this submission must also fail.
Next, the applicant submits that defence counsel at the trial was incompetent in giving prominence to the issue of clean-up or disposal having "neglected to cross-examine the relevant witnesses in relation to this issue". He submits that this encouraged the jury to speculate further on the issue in favour of the Crown. I do not accept that submission. The absence of any evidence of cleaning up or disposal of items used in the murders or during the process of cleaning up was a significant point in favour of the applicant. There was no incompetence in emphasising that point in submissions. On the contrary, my impression from reading the closing address is that the point was put powerfully and effectively. The jury rejected it.
In support of this last ground, the applicant again sought to draw an analogy with the case of Gordon Wood. The analogy is contrived and takes the matter no further.

Differences in paint

Part of the Crown case against the applicant was evidence that the colour and chemical composition of the spray paint used to paint the message "Fuck off Asians KKK" on a wall in the Gonzales family home was indistinguishable from the colour and chemical composition of a spot of paint found on the sleeve of the jumper the applicant was wearing when police responded to his triple-0 call (referred to by the trial judge in the summing-up at p 40).
At par 66 of the applicant's written submissions dated 8 August 2018 he submits: "In his statement, Detective Elliott stated that on 30 July 2001, in company with Detective Gibbs, Detective Elliott and Analyst Richard Wuhrer of the Microstructural Analysis Unit at the University of Technology, Sydney, conducted an Environmental Scanning Electron Microscope examination of the microscopic paint particles found on the jumper fibres. An elemental analysis of the jumper fibres was compared to an elemental analysis of the graffiti, and the examination showed a number of similarities and differences in the elements present in the jumper fibres and the graffiti [paint]."
The applicant submits that his defence counsel was incompetent in failing to cross-examine Detectives Elliot and Gibbs in relation to the "number of differences that were identified between the paint allegedly found on the applicant's jumper and paint in the graffiti" (par 67). The applicant noted that Mr Wuhrer was not called as a witness at the trial and he was not aware of any statement from Mr Wuhrer being served in the brief of evidence.
The applicant submits that evidence distinguishing between the two paints would cast doubt on that aspect of the Crown case (par 68). He further submits that, having failed to cross-examine those witnesses, counsel compounded his failure by "giving prominence to the issue" in his closing address (par 69).
There does not appear to be any substance in this complaint. As submitted by the Attorney General, it appears to be founded on a misreading of Detective Elliot's statement, which referred to "similarities and differences in the elements present in the jumper fibres and the blue graffiti paint". It was not a comparison of paint with paint but rather of paint with paint-stained jumper fibres (Attorney General's written submissions dated 10 September 2018 at par 34(a)). Detective Elliott added: "At the completion of the examination it was determined that more specific, confirmatory forensic analysis was required".
The further analysis was conducted by Dr Phillip Maynard, a forensic scientist and expert in chemical analysis and trace evidence, who was called at trial by the Crown to give expert evidence on the subject. He gave evidence about the sensitivity of the two techniques used to analyse colour and chemical composition (Tcpt, 21 April 2004, pp 558-559). This analysis revealed the two samples to be "indistinguishable" in colour and chemical composition (Tcpt, 21 April 2004, p 559-560).
Any cross-examination of Detective Elliot or Detective Gibbs as to the "similarities and differences" found in their analysis would have run the risk of highlighting the strength of Dr Maynard's expert evidence that, on further analysis, the colour and composition of the samples were "indistinguishable". I am not persuaded that there is any merit in this complaint.

Dried blood

At par 70 of his written submissions, the applicant submits: "It was the Crown case that due to the limited amount of non-visible blood found on the Applicant's clothing, the Applicant's claim that he had hugged and tried to revive his family members upon discovering the deceased on the night of the murders was not plausible: Previous inquiry application at [10(6)]."
The Attorney General submitted that the submission placed undue weight on the summary of the Crown case in the decision of Adamson J and did not accurately reflect the case in fact put by the Crown at trial. He submitted that there was "no serious dispute" that the applicant had hugged his parents and asserted that the Crown's credibility challenge was in relation to the applicant's claim that he "went further than hugging and attempted to revive" each family member.
I do not think that is an accurate reflection of the Crown case at trial. The summary at [10] of Adamson J's decision is a faithful summary of the matters listed by the trial judge when he summarised the Crown's circumstantial case during his summing-up at pp 37-42. Item (6) in the list at [10] of Adamson J's decision is "Evidence of only a limited amount of blood on the applicant's person notwithstanding his assertion that he had hugged and tried to revive each of the deceased upon returning home on the night of the murders". That is an accurate summary of the judge's summing-up at p 39 where his Honour told the jury that the Crown relied on the fact that, "there was very little blood on the clothes that the accused was wearing when the ambulance officers and police arrived at the house, notwithstanding his assertions that he had hugged and tried to revive all of the three victims".
The applicant's submission fastens on the contention that the Crown submitted that his account of hugging and trying to revive his family members was "not plausible". The only reference given is to the judgment of Adamson J. As already indicated, her Honour's summary was in turn drawn from the trial judge's summing-up. I have been unable to find, in the Crown's closing address, a submission to the jury in the explicit terms stated by the trial judge. The judge's understanding of the point appears to have been informed by the Crown's cross-examination of the applicant. The Attorney General's assertion that there was "no serious dispute that the applicant hugged the bodies of his parents" was supported by reference to the proposition that "he was observed doing so by his neighbour Shane Hanley". However, to add to the confusion, that is not what Shane Hanley said. The extracts cited by the Attorney General are set out below, together with an additional question and answer (Tcpt, 14 April 2004, p 232(16)-(18) and 232(40)-(57)): "Q. What did Sef do at that stage when you were there beside Ted? A. As we were running in, I remember Sef yelling out 'Papa, Papa Papa.' And when we got inside Sef was straddled over Ted pulling on him saying Daddy Daddy Daddy.' And I could see massive wound." "Q. What happened next? A. I remember seeing a mobile phone just up from Ted's head, and it was a silver - it looked like it was a silver Nokia phone, and the face was lit up. And the I remember clearly. And his briefcase in his hand. Or his briefcase - Ted still appeared to have his glasses on. A lot of blood. And I remember pulling Sef off his father, because I had to straddle over Ted, and I had to pull Sef off, and he jumped and ran through to the next room saying 'Mummy Mummy Mummy', and I went after him and that's when I saw Ted's wife laying on the floor with wounds around her neck and shoulders." "Q. Did Sef do anything in relation to his mother? A. Yes, he was pulling at his mother too saying 'Mummy Mummy Mummy'. I dragged him away from his mother again, and he ran back around the corner saying 'Daddy Daddy', coming back to Ted."
Mr Hanley's evidence did not support the applicant's account that he "hugged" his parents or that he tried to revive them, only that he "pulled" at them. Further, it does appear that the Crown disputed the veracity of the applicant's account. The Crown's cross-examination of the applicant included the following exchange (Tcpt, 12 May 2004, p 1275(17)-(42)): "Q. What I want to suggest to you is that when you were examined by the police, and your clothing was later examined after you gave it to the police, what you had on the clothes that you were wearing when the police arrived was one spot on your pants, one on your sleeve, one on your shoe eyelet and some blood on the soles of your shoes? A. Yes sir. Q. I suggest to you that that is nowhere near the amount of blood that you would get on your clothes if you had indeed done what you say you did, in hugging and attempting to resuscitate your father, your mother and your sister? A. Sir, what was the question?" Q. I am suggesting to you you would have been covered in blood if you'd done those things. You would have had it all over you. You would have had it all over your clothes, all over your shoes, all over your hands? A. Sir, I was in the rain for a long time that night and a lot of it may have been washed from my hands. Because I remember that on my hands, when I looked at it, I didn't have blood on my hands, but I had a little bit on my wrist. And I that was when I was on the floor and it was raining, that's when it was washed off."
In closing address, the Crown prosecutor said only this, evidently referring back to that point (Tcpt, 13 May 2004, p 1390(47)-(49)): "…it's impossible that he did what he claims to have done and got that little blood on him."
In any event, the applicant's point is that his counsel at trial was incompetent in failing to cross-examine Sergeant Betts, the first police officer to attend the crime scene, as to his observation that he saw a "large amount of dried blood" around the bodies of the three victims (statement of Sergeant Betts dated 12 July 2001 at pars 5-10). The applicant submits that the Sergeant should have been cross-examined to establish that the blood had already dried by that time and that this provided a "clear explanation" for the limited amount of blood found on him (applicant's written submissions dated 8 August 2018 at pars 70-72).
The decision not to go down that path was well within the forensic judgment of counsel and appears to have reflected good judgment at that. How it would have assisted the applicant to emphasise that he claimed to have tried to revive bodies on which the blood had already dried was not explained. When the applicant was cross-examined by the Crown prosecutor in relation to his first statement to police (where he had described finding his father), the applicant said at Tcpt, 12 May 2004, p 1281(39)-(44): "I noticed holes in the stomach and chest area, I thought these were shots. I tried to cover up where it was bleeding using only my hands […] I was hugging him and when I put him back down I tried to give him CPR."
The proposition that the applicant could have performed CPR on his father without getting more blood on him is implausible. I am not persuaded that there is any basis to conclude that cross-examination of Sergeant Betts on the issue of dried blood would have assisted the applicant. On the contrary, in my assessment, that would have been a dangerous line of questioning which could well have been damaging to the applicant's case. The suggestion of incompetence in taking the course that was taken is without merit.

The baseball bat issue

At par 73 of the applicant's written submissions dated 8 August 2018, he said: "It was the Crown case that the blunt force injury to Clodine Gonzales was allegedly caused by the Applicant's missing baseball bat: Previous inquiry application at [10(4)]. This baseball bat issue was founded on the theory that the black marks found on the wall of Clodine's room, were caused by the baseball bat in question."
I have already referred to the evidence given by Dr Maynard in the trial. The applicant's submission refers to a part of Dr Maynard's report which, so far as I am aware, has not been included in the material before me. It is convenient to proceed on the assumption that the report included the matters stated by the applicant. The applicant says that, in his report dated 11 July 2002, Dr Maynard concluded that the most likely source of the black marks on the wall was a piece of furniture. The applicant says Dr Maynard stated: "The infrared spectrum of the black material identified it as a nitrocellulose lacquer…Nitrocellulose lacquers are found in furniture coatings and occasionally as wood-finish varnishes for indoor use. Their use has declined in recent years due to their high flammability. As a result, in my opinion the most likely source of the black marks on the wall was a piece of furniture."
The applicant submitted that his counsel at trial was incompetent in failing to cross-examine Dr Maynard in relation to the purported significance of the nitrocellulose lacquer, which he submits "would have cast doubt on this aspect of the Crown case" (applicant's written submissions dated 8 August 2018, par 75).
I do not see how any cross-examination on that issue could possibly have assisted the applicant. The Crown case was that Clodine's injuries were caused by a blunt instrument, such as a baseball bat. The applicant was known to possess a baseball bat but could not produce it for police (Attorney General's written submissions dated 10 September 2018, par 36(a)).
In his closing address, the Crown prosecutor said (Tcpt, 13 May 2004, p 1376(14)-(28)): "Isn't it a coincidence ladies and gentlemen that what was used was something like a bat. And you have seen the piece of gyprock where I think it was Detective Gibbs did some experiments with different items, and the closest similarity that he can get to the black mark on the wall is with a T ball bat, which is a bit like a baseball bat, it's just a bit shorter. And isn't it a coincidence that the accused had a baseball bat in his car at some stage and was unable to find it. Police asked him about it, and he went away and had a look for it and, wonder where it's gone? What a coincidence that the baseball bat is missing. What a coincidence that the mark on the wall in Clodine's room, where all of that blood is, in exactly the same area, where all of that blood is and where her body is shows mark that are consistent with a T ball bat."
In his summing up at p 39, the trial judge reminded the jury of the argument that the injuries to Clodine and the dents in the wall "could have been inflicted by a baseball bat or T-Ball bat".
In the circumstances, there could be little forensic benefit in defence counsel cross-examining Dr Maynard as to the presence of nitrocellulose lacquer. Even if such cross-examination could have proved unequivocally (which of course it could not have) that the black marks were caused by a piece of furniture rather than the applicant's baseball bat, that would not have introduced a doubt as to whether the applicant killed Clodine. It would have been a dangerous line of cross-examination. As submitted by the Attorney General (Attorney General's written submissions dated 10 September 2018, par 36(c)): "Such a cross-examination carries the usual risks of improving the Crown case, in that it might tend to confirm (and fix in the jury's mind) the possibility that the dents could indeed have been inflicted by a baseball bat. It is understandable why counsel may have determined not to pursue this."
There is no basis to conclude that there could have been a miscarriage of justice arising from counsel's decision not to explore the issue of the presence of nitrocellulose lacquer on the wall. The suggestion of incompetence on that basis is without merit.

Teddy Gonzales' likely time of death

As noted by Adamson J at [21] (set out above), the time at which each of the deceased died was significant in the trial because the applicant had credible alibi evidence from about 7.45pm. The applicant notes that, on the Crown case, Mary Gonzales was killed at about 5.30 pm and that Teddy Gonzales was killed at about 6.45 pm, giving the applicant about an hour to clean up and get to Sam Dacillo's house.
The applicant contended that defence counsel was incompetent in that he failed to cross-examine Dr Cala in relation to the likely interval between the deaths of Mary and Teddy Gonzales and that this deprived the jury of the opportunity to assess evidence that Mr Gonzales died several hours after 5.30pm (applicant's written submissions dated 8 August 2018, par 78). The submission went so far as to contend that the jury was deprived of the opportunity to consider evidence "that it was unlikely that [Teddy] was killed at 6.45 pm".
The applicant's defence counsel did cross-examine Dr Cala as to the likely time of death of all three victims. The cross-examination included the following exchange at Tcpt, 21 April 2004, p 536: "Q. What is the upper range then of Clodine Gonzales being alive? Can you give us that or your best estimate in terms of that? A. When you say 'the upper range' do you mean the earliest time? Q. No the latest time that she could be still alive? A. I think about 6pm on the evening of 10 July. Q. And equally with Mrs Mary Gonzales, what's the upper range; that is, the latest time that she could still be alive? A. I think around about that time as well. Q. And Mr Gonzales Senior, Teddy Gonzales? A. I favour a later time for him based purely on my examination and the body temperature, up to about 10pm."
As submitted by the Attorney General, the evidence elicited in cross-examination (that Mr Gonzales could have died "up to about 10pm") was more advantageous to the applicant's case than Dr Cala's written report, where he concluded that Mr Gonzales could have died "up to several hours" after his wife and daughter (Attorney General's written submissions dated 10 September 2018, par 37).
There is no merit in this complaint.

Height of the perpetrator

The applicant further submitted that counsel was incompetent in failing to cross-examine relevant witnesses in relation to the evidence given at trial by the applicant's aunt, Emily Luna.
Ms Luna attended the crime scene with her eight year old son at approximately 6.05pm on the night of the murders (Tcpt, 14 April 2004, p 312(5)). She gave evidence that, after ringing the front door bell three times, she waited for approximately five minutes during which time she saw through the glass panel on the left side of the door what she initially believed to be a coat stand with a hat and long jacket (Tcpt, 14 April 2004, pp 315-316). In December 2001, Ms Luna participated with police in an attempted reconstruction of what she had seen in July 2001. A recording of that reconstruction was tendered at the trial. Ms Luna gave evidence that, after participating in the reconstruction, she came to the view that "it was actually a person standing there" who was standing completely still (Tcpt, 14 April 2004, pp 320-321). She was cross-examined at length about that evidence (pp 340-360). In re-examination she said she initially thought it was a person but then her son persuaded her it was a coat stand and then after the reconstruction she came back to thinking it was a person (Tcpt, 14 April 2004, p 380).
The applicant submitted (applicant's written submissions dated 8 August 2018, par 79) that: "According to Emily, she and Gerard witnessed a figure through the frosted glass at the front door, which she described as 'a coat stand with a hat and a long jacket.' It was the Crown case that this figure was the perpetrator."
The Attorney General rejected that analysis, submitting (Attorney General's written submissions dated 10 September 2018, par 38) that: "Contrary to the applicant's submissions at [79], the Crown did not advance any case specifically referable to Emily Luna's evidence that she saw a figure at the crime scene. Rather, the Crown case was simply that, when Ms Luna came to the house, 'Someone was in the house at 6pm. Undoubtedly that was the killer': see the Crown Prosecutor's closing address at Tl 379.44-45. The Crown Prosecutor made considerable use of Emily Luna's attendance at the house in his closing address, arguing that the applicant's first alibi (which he accepted was false) took care to place the applicant at home at 6pm, because the applicant knew that Ms Luna had rung the doorbell at that time: Tl 388.34-1389.16."
It is not clear to me that this clarification derogates from the applicant's submission. If the evidence established that there was a person in the house who was taller than the applicant, that was inconsistent with the Crown's case.
However, the applicant's point on this issue falls classically within the scope of issues on which an appellate court would defer to the forensic judgment of defence counsel present at the trial. The applicant submits his trial counsel was incompetent in failing to "verify the height of the coat stand" or to have it "exhibited to the jury in order to allow the jury to assess whether or not the height of the coat stand corresponded with the height of the applicant", (applicant's written submissions dated 8 August 2018, par 81). However, as noted in the applicant's own submissions, Ms Luna gave evidence was that the figure she mistook for a coat stand was taller than her and that the applicant was "probably the same height" as her (Tcpt, 15 April 2004, p 333(36)-(45); 19 April 2004, p 378(10)).
The complaint raises nothing more than a different view as to the way in which the same issue might have been approached. It does not raise a doubt as to the applicant's guilt.

Failure to call witnesses and follow client's instructions

The applicant asserts that his trial counsel failed to call witnesses said to be critical to an alternative hypothesis that other parties were responsible for the three murders. He points to the evidence at trial of Bernardo David, a solicitor who gave evidence in the Crown case that, two months before the murders, he had a conversation with Teddy Gonzales in which Mr Gonzales said he was involved in a property transaction in the Philippines and that his brother was acting as his agent. Mr Gonzales told Mr David that the transaction had fallen through and the other party "told [his] brother they're going to eliminate my family" (Tcpt, 6 May 2004, p 1044(35)-(51)). The applicant submitted that, according to Mr David, the source of the threat was a phone call which had originated from overseas.
The applicant submitted (applicant's written submissions dated 8 August 2018, par 84) that: "At trial, the Police were cross-examined in relation to their investigation pertaining to the above threat, and it was concluded that the only overseas phone calls which could be ascertained in the period of time referred to by Mr David were traced to Emilio Suntay Tanedo."
The applicant submitted that despite his "explicit instructions" to counsel that Mr Suntay Tanedo and his sister Nanette Suntay Tanedo were to be called and cross-examined, this did not occur. There is no evidence of those instructions or any discussions with counsel surrounding them. Nor did the submission explore how the applicant anticipates the evidence of those witnesses might have unfolded. There is every prospect that a forensic judgment not to call such witnesses reflected wisdom and experience rather than incompetence. The submission does not raise any appearance of doubt as to the applicant's guilt.

Ground 4: previous application not determined according to law

Ground 4 contends that the previous Part 7 application determined by Adamson J was not determined according to law.
The applicant makes two points in support of his ground 4. The first is based on his misinterpretation of Adamson J's remarks at [20] as confirmation of the existence of new exculpatory material. This aspect of ground 4 must be rejected. As already explained, there was no new material.
The second point is based on Adamson J's rejection of a submission made by the applicant in the first inquiry that the alleged dearth of forensic evidence in his case was analogous to the case of Tiwary v R [2012] NSWCCA 193. The applicant contends that this should have given rise to a doubt or question as to his guilt within the meaning of s 79(2) of the Crimes (Appeal and Review) Act.
In an application of this kind, there is no warrant for comparison with other cases. The application must, of necessity, turn entirely on an assessment of the particular conviction of which review is sought. Adamson J undertook a careful consideration of the submissions on that issue and I see no deficiency in that analysis. But it would equally have been open to her Honour to dismiss the argument out of hand as inviting a wrong approach to the task of determining the application.
For those reasons, ground 4 is not made out. Even if it were established that the previous inquiry was not determined according to law, that would not be a basis for granting the present application; it would simply be a basis for entertaining a second application: Sinkovic at [66] and [88].

Conclusion

The applicant's submissions have not persuaded me that there appears to be a doubt or question as to his guilt. It follows that the authority to take either of the steps identified in s 79(1) of the Crimes (Appeal and Review) Act is not enlivened.
For those reasons, I dismiss the application. I request the Registrar to forward a copy of these reasons to the applicant.

Endnotes

Regina v Gonzales [2004] NSWSC 822.
Gonzales v R [2007] NSWCCA 321; (2007) 178 A Crim R 232.
Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2018] NSWSC 787. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 October 2019

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (23 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (22)

Cited By (7)