Gonzales v R [2024] NSWSC 182 | Case summary

The clean-up/disposal evidence issue

The burden of Mr Gonzales' assertion in support of this issue is that there was an absence of forensic evidence in the Crown case that he had cleaned himself up or disposed of evidence, which he argues necessarily gives rise to a doubt or question as to his guilt. This submission takes strength from the way in which the Crown case proceeded at trial. However, to understand the conclusion to which I have come on this issue, it is necessary to refer to Mr Gonzales' submissions on this application and to compare them with the previous consideration given to the forensic evidence by Adamson J in Gonzales (No 1) and McCallum J in Gonzales (No 2).
Mr Gonzales submitted that, according to the Crown's expert, Professor Hilton, the Gonzales family killings were "quite markedly bloody affairs" and due to the nature of the injuries sustained by the deceased, the quantity and distribution of shed blood would indicate a strong likelihood of a substantial transfer of blood from the victims to the murderer's skin or clothing. That issue is not controversial: the Attorney has accepted in terms for the purposes of this application and otherwise more generally that there was a likelihood of blood transfer between the victims and the murderer. As McCallum J observed in Gonzales (No 2), that proposition arose from the nature of the murders and the crime scene, regardless of the further evidence of Professor Hilton.
However, multiple witnesses observed Mr Gonzales in the immediate post event period and saw no blood on his skin or clothing. It therefore became the Crown case that Mr Gonzales would have had to clean or wash up a substantial amount of blood after the murders for him to have been the perpetrator. The Crown accepted that the limited timeframe within which Mr Gonzales could have done so and also disposed of a large amount of evidence at some location far removed from the house was about one hour.
Mr Gonzales submitted that if he were the murderer, the washing of blood could only have occurred at the house because, according to the Crown case, he changed his clothes after each murder to avoid alarming the next victim by reason of his bloodied appearance. Mr Gonzales submitted that it was implicit in the Crown case that this would include the need to wash his skin. This could only have happened at the house because the Crown case was that Mr Gonzales remained there following each murder. The Crown case also disclosed that no blood was found in any of the family's vehicles, suggesting that Mr Gonzales did not drive to another location to clean up.
Mr Gonzales submitted that there was "absolutely" no evidence that he washed up blood or disposed of evidence. Submissions to this effect were robustly presented to the jury by his counsel at trial, arguing that if Mr Gonzales had undertaken such comprehensive tasks within a limited timeframe, the police would have uncovered evidence of this fact.
The Attorney accepts that the Crown's case theory required that some steps must have been taken by Mr Gonzales to either clean himself or dispose of evidence and clothing or both or to do some combination of these things so that his appearance was unremarkable when he met his friend Sam Dacillo, noting as well that the murder weapons were not located. The Attorney has argued that it does not follow that the Crown was required to prove that he had done so for the jury to convict him.
However, the Attorney's response to the present application is that Mr Gonzales' submissions on this point have all been raised before and do not raise any new matters. In one sense, so much is apparent from Mr Gonzales' extensively footnoted references in his written submission to what McCallum J had to say in Gonzales (No 2). These references were to some of the following paragraphs: "Ground 1: an indispensable, intermediate fact in the circumstantial case? [28] 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.' [29] 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. [30] 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. [31] 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 [32] 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. [33] 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. [34] 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. [35] 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. [36] 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.' [37] 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.' [38] 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.' [39] 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. [40] 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. [41] 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.' [42] 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. [43] 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. [44] 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). [45] A Shepherd direction concerning the clean-up was not required and indeed would have been misconceived."
Whether Mr Gonzales' contentions are framed as a failure by the trial judge to give a Shepherd direction, or as a failure by the Crown at trial to prove that he had cleaned himself up at the house and disposed of evidence in a particular timeframe or some other combination of these related concepts, they have all been raised by him in previous applications and dealt with in a thorough and reasoned way. As the Attorney has pointed out in his submissions in this application, the related contention that Adamson J had made an exculpatory factual finding in Gonzales (No 1) excluding "all possibility of the applicant cleaning-up or disposing of evidence" was also considered by McCallum J in Gonzales (No 2). Her Honour reasoned, rightly in the Attorney's submission, that Adamson J had not done so, and could not have done so.
In this last respect, Mr Gonzales points once again to the statement of DSC Elliot whose evidence at trial included the following: "[7] At 7.30pm 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 handbasin, 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 handbasins and saw no photoluminescence on those surfaces."
Mr Gonzales contended that this statement was capable of establishing that "all possible" sites at which he might have disposed of evidence or otherwise removed blood from himself were investigated. However, the statement only related to an investigation of the crime scene. It did not, as the Attorney has emphasised, necessarily flow from the Crown case, as Mr Gonzales submits, that any clean-up could only have occurred within the home.
As the Attorney has also pointed out, the more general issue central to Mr Gonzales' contentions is that there was an absence of forensic evidence in the Crown case and an absence of evidence that he cleaned up or disposed of evidence, which he argues necessarily gives rise to a doubt or question as to his guilt. However, that contention was dealt with by Adamson J in Gonzales (No 1). It was also considered in Gonzales (No 2) in more than one context. It was also ventilated in the trial itself in that the absence of such evidence was emphasised by Mr Gonzales' counsel on his behalf. For example: "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 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."
Finally, the Attorney made the following submissions: "71. If the Court proceeds to consider the applicant's contentions substantively, the Attorney's position is that they do not give rise to an appearance of a doubt or question as to his guilt. The position at trial, favourable to the applicant, was that there was an absence of any forensic evidence against him. DSC Elliott's evidence at [7] potentially advanced that position to a very limited extent in relation to the crime scene itself. It did not exclude the possibility, however, that the applicant took steps to clean up, and/or dispose of evidence in some way, at some other location (if not at the crime scene itself). As Adamson J concluded in Gonzales (No. 1), there was a window of opportunity for the applicant to do so before meeting Mr Dacillo, and there was evidence that the applicant had, when told that the police had discovered relevant evidence, reported for the first time that he was missing three tracksuits. 72. The absence of forensic evidence or clean-up/disposal evidence would have been plain to the jury, who nonetheless convicted the applicant. As against it was an otherwise strong circumstantial case which included evidence that the applicant had the opportunity to commit the murders, evidence that various items from within the home were missing and were consistent with the injuries inflicted on the victims, evidence that that applicant had previously poisoned his mother and evidence that the applicant gave two false alibis (one of which he admitted was false). That context should be taken into account in assessing whether the matters raised give rise to the appearance of doubt or question as to the applicant's guilt."
In whatever way one analyses Mr Gonzales' contentions dealing with this issue, it is plain that his arguments have all previously been considered and dealt with comprehensively. I am unable to detect any variation of the way he seeks to address this issue that amounts to a new or fresh argument or that raises some as yet unassessed proposition to which further attention could or ought profitably be directed.

Gonzales v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (5 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (8)