Gonzales v The Queen - [2018] NSWSC 787 - NSWSC 2018 case summary — Zoe

NSWNSWSC

Gonzales v The Queen

[2018] NSWSC 787

Supreme Court of NSW|2018-05-29|Before: Adamson J, James J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-05-29

Before

Adamson J, James J

Catchwords

(2007) 178 A Crim R 232 R v Gonzales [2004] NSWSC 822 Shepherd v The Queen (1990) 170 CLR 573
[1990] HCA 56 The Queen v Hillier (2007) 228 CLR 618

Source

Original judgment source is linked above.

Catchwords

(2007) 178 A Crim R 232 R v Gonzales [2004] NSWSC 822 Shepherd v The Queen (1990) 170 CLR 573[1990] HCA 56 The Queen v Hillier (2007) 228 CLR 618

Judgment (46 paragraphs)

[1]

The applicant's motive

The sentencing judge found, at [38] of the sentence judgment, that the applicant's motives for the murders were 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."

[2]

Injuries to the three deceased

Dr Allan Cala, the forensic pathologist who performed the autopsies on the three deceased, gave evidence for the Crown at trial. He noted injuries which included the following: 1. Clodine had a stab wound which resulted in a fracture of the right 10th rib; and a defence wound on her right thumb. 2. Mrs Gonzales had a stab wound which passed through the sternum to the left of the midline adjacent to the 3rd rib; a stab wound which passed through the right 6th rib to a depth of 80mm; two other stab wounds which passed through the left 9th ribs each to a depth of 100mm; and a defence wound on her right middle finger. 3. Mr Gonzales had a stab wound on the left side of his neck which resulted in a fracture of the hyoid bone; a stab wound which had passed through the right 2nd rib to a depth of 140mm; a stab wound between the 5th and 6th thoracic vertebrae and the spinal column hemisected; and defence wounds on both of his arms and hands.

[5]

Mr Gilchrist

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."
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."
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."
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."
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.
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.
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.

[6]

Dr Cala's evidence about the time of death

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."
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".
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.
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.
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."
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."

[12]

Evidence of the likelihood of significant blood transfer

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.
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.
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.

[17]

The lack of evidence of injuries to the applicant and blood on the applicant's body or clothing

The applicant submitted that each of the victims engaged in defensive actions and that there must, accordingly, have been substantial blood transfer from the victims to the perpetrator's skin, weapons and clothing. As no weapons (whether knives or blunt instruments), no blood-soaked clothing, or footwear of any of the three deceased were found, it was necessary for the perpetrator to dispose of each of these items and clean up any vestiges of blood from the premises where the murders were committed.
The applicant contended that these circumstances were inconsistent with the uncontroverted evidence referred to above. He also relied on the emphasis in the Crown case on the perpetrator being an amateur and submitted that an amateur would be more likely to struggle and sustain injury and less likely to be able to avoid blood transfer or dispose of evidence without trace.
The applicant submitted that whoever carried out the murders would have, in their struggle with each of the deceased, exerted themselves physically and subjected themselves to considerable stress, thereby increasing the likelihood of defensive impact or injury. The applicant submitted that the Crown had not proved that he had any injury, markings or evidence of struggle on any part of his body. He also submitted that there was no direct evidence to indicate that the applicant had cleaned up any blood or disposed of any evidence and argued that the Crown had offered no basis to account for the disposal by the applicant of such a large volume and number of items. He submitted that this was a significant gap in the evidence, which indicated that it was "very likely" that he had no involvement in the murders. The applicant contended that the "dearth of crucial forensic evidence" was analogous to Tiwary v R [2012] NSWCCA 193 (Tiwary), considered below, and, as such, would rise to a doubt or question as to his guilt for the purpose of s 79(2) of the Act.

[25]

The inability of the Crown to prove time of death

Further, the applicant submitted that, in order to prove his guilt, the Crown had to prove that the three deceased died at a time when he had an opportunity to kill them and that, accordingly, the Crown had to prove that the three deceased died before 7.45pm. He submitted that there was a "reasonable likelihood" that Mr Gonzales could have been killed between 8.00pm and 10.00pm on 10 July 2001, at a time when the applicant was not at the scene of the crime. The applicant contended that the Crown's inability to establish this matter gave rise to a question or doubt as to his guilt. The applicant submitted that the evidence that Mr Gonzales usually returned home at about 7pm was an insufficient basis to conclude that he acted in accordance with his usual practice on 10 July 2001 and provided no basis for the assumption that he arrived home before the applicant left to meet Mr Dacillo that evening. Although the applicant did not dispute that Mr Gonzales was killed soon after arriving home, he contended that the time of his arrival could not be determined on the evidence.
Further, the applicant relied on the extract from Dr Cala's autopsy report set out above to the effect that he believed that Mr Gonzales died up to "several hours" after his wife's and daughter's deaths. He submitted that, because it was the Crown case that Mrs Gonzales was killed at about 5.30pm, there was, on the basis of Dr Cala's autopsy report, a "reasonable possibility" that Mr Gonzales could have been killed at around 7.30pm or later. The applicant submitted that, had Mr Gonzales been killed at 7.30pm, this would have left no more than 15 minutes for him to have committed the final murder and cleaned up, leaving no evidence of blood or other items and having disposed of a large amount of incriminating material in a location from which it has never been recovered.
The applicant submitted that the guide referred to by Dr Cala of one degree an hour, if applied to the times of death of the three deceased, would give rise to a time of death of Mr Gonzales of 9.30pm on the assumption that his wife was killed at 5.30pm. The applicant submitted that Dr Cala's "guide" was "substantially more cogent than a Crown case founded on the assumption that Teddy [Mr Gonzales] was heading home at 6.23pm from Wentworthville."
The applicant contended that the uncertainty about the timing of Mr Gonzales' death created a doubt, not only about his culpability for his father's death, but also with respect to his guilt for the other two deaths. In support of this submission, he relied on the fact that the Crown case was that the same person had killed all three persons, as reflected in the directions given by the trial judge in the summing up.

[30]

Potential for blood transfer from the deceased to their perpetrator

The applicant's submission that the perpetrator would have had blood on his or her skin or clothes as a consequence of the attacks on the three deceased was consistent with the Crown case. It was the Crown case that the applicant wore a different tracksuit (of his own) when he killed each of the three deceased and then disposed of this clothing and cleaned up between about 6.45pm and the time of leaving to meet up with Mr Dacillo. The Crown case was that the applicant got a drop of blood on his pants, shirt and jumper when he reentered the house after 11.30pm.
In these circumstances it is not to the point that no one who saw the applicant from 8pm on the night of the murders saw any blood on his clothes. The Crown case at trial was that the applicant had sufficient time to dispose of his three bloody tracksuits and clean himself up between the time of the final murder (around 6.45pm) and 7.45pm, when he left to meet Mr Dacillo. Professor Hilton's opinion that heavy rain would not have been sufficient to wash the applicant clean is, accordingly, irrelevant since it was not part of the Crown case that this was the mechanism by which the applicant had rid himself of the blood. Professor Hilton did not address the hypothesis that the applicant had time to remove and dispose of his clothes and clean his skin between the final murder and being observed by anyone else. The timing of the murders, as set out in the findings on sentence (the last murder, of Mr Gonzales, taking place around 6.45pm), would have afforded the applicant an opportunity to wash himself, and to dispose of any items such as towels used in the washing process with his bloody tracksuits before leaving to meet Mr Dacillo.
The absence of evidence of injury to the applicant and the absence of evidence of blood on his clothes or skin after 8pm 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 bloody 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 11.30pm, before calling Triple-0.
The fact that the applicant reported his missing tracksuits to police is also significant since there would have been no reason for the applicant to do that if he were not the perpetrator.

[31]

Lack of evidence of clean up by the applicant at the scene

As referred to above, the applicant relied on the lack of evidence of the details of the cleaning up said by the Crown to have been undertaken by the applicant to support the submission that he had no involvement in the murders.
I do not regard Tiwary as providing any useful analogy with the present case. In that case, the appellant was convicted of murdering his two housemates in their home in two attacks perpetrated two hours apart. The Court of Criminal Appeal quashed the convictions on the grounds that the verdicts were unreasonable, on the basis of the following evidence.
In Tiwary, there was evidence that three unidentified people (not including the appellant) apparently by pre-arrangement, picked up one of the victims in a car to drive him a few hundred metres to the unit where he lived with the applicant and the other victim. They were the last people to see him alive and did not come forward to assist police. The Court found that there was a reasonable possibility that at least one of those three people: 1. had a connection with other evidence of the rearrangement of the usual pattern of the victims' days; 2. had organised to meet the second victim after they (or at least one of the three) had killed the first victim and were driving the second victim to the unit where the second victim lived with the first victim and the appellant; and 3. intended that the second victim would, upon arrival at the unit, also be killed.
The Court regarded as significant the dearth of forensic material to link the appellant to the death of either victim, especially the first victim: Tiwary at [127]. The evidence indicated that the first victim had been murdered around midday and that the second victim was murdered after 2.05pm, and possibly after 2.10pm: [123]. The appellant called Triple-0 by 2.20 or 2.21pm. At [123], the Court said of this timing that it was: "barely enough ... to undertake the task of dispatching [the second victim], washing and drying himself and washing and drying the bathroom, but it raises the question of why he would place himself under such time pressure."
Their Honours further noted at [123] that: "[t]he importance of the cleaning task for exculpation would logically have dictated (to such a careful planner, on this hypothesis) some further delay of the call."
The Court considered that the "confluence" of these two bodies of evidence gave rise to a reasonable doubt as to whether the appellant (whose case was that he was asleep in a bedroom in the unit) was the murderer: [129].
In addition, in Tiwary, the second victim's blood was found on the appellant. The question was raised whether this blood was expirated blood when the second victim coughed after the appellant had washed himself and before he called Triple-0. The Court found that this circumstance gave rise to concern about the reasonableness of the conviction: [119]-[125]. The timing was such that the appellant must have washed himself in the bathroom of the unit where he lived and where the murders took place. However, no inculpatory evidence was located there: [120]. Nor was there any evidence of wet clothing or towels that may have been used to dry the bathroom of the unit after washing himself: [121]. There was no reliable evidence of blood in the bathroom sink as the positive result was presumptive only: [122]. The timing of the appellant's mentioning the coughing or expiration of blood by the second victim to police did not suggest that he had methodically planned and effected the murders and then been inconvenienced by the expiration of blood while he held the phone faking concern about the victim: [123]. The Court found that aspects of the Triple-0 call were suggestive of the appellant's innocence: [124].
The present case involves a significantly different evidentiary matrix. The evidence of opportunity was in favour of the Crown: the applicant did not meet Mr Dacillo for more than an hour after the evidence suggested that Mr Gonzales died. In the present case, evidence of a small amount of blood on the applicant's clothing was not the only forensic evidence connecting him to events at the scene on the night of the murders. For example, the colour and chemical composition of the paint that was used to spray the "Fuck off Asians KKK" on the wall at the house were 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 arrived.
The circumstantial case in Tiwary was not comparable to the strength of the Crown's circumstantial case against the applicant.

[39]

The Crown's inability to prove the time of the deaths of the three deceased

The applicant's submission that the Crown's inability to prove that the three deceased died at a time when he had the opportunity to kill them is based on a fundamental misapprehension as to the nature of proof in a criminal case based on circumstantial evidence. It is not to the point that the evidence of the times of death and the period during which the applicant had the opportunity to kill the deceased, when considered in isolation, was insufficient to prove his guilt beyond reasonable doubt. The rest of the evidence in the Crown case had to be added to the evidence relating to these two matters. Since the case was circumstantial, all of the circumstances established by the evidence were required to be considered and weighed in deciding whether there was an inference consistent with innocence reasonably open on the evidence: The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46] (Gummow, Hayne and Crennan JJ), citing; Shepherd v The Queen (1990) 170 CLR 573 at 579 (Dawson J); [1990] HCA 56.
In any event, it was not essential that the Crown establish the times of death. Evidence tending to establish the times of death was, in this case, one of many elements making up a circumstantial case. It was not necessary that it be proved beyond reasonable doubt. Even if it were correct to characterise the evidence of time of death as inconclusive (as all such evidence is, having regard to the limitations of the science of determining the time of death), that does not diminish the strength of the numerous other items of evidence in the Crown case which were inconsistent with the applicant's innocence.
What the Crown case added up to on these matters was that it was possible that each of the three deceased died at a time when the applicant had the opportunity to kill them. In other words, the expert evidence of the times of death was not inconsistent with the Crown case. The Crown did not, in order to prove its case beyond reasonable doubt, have to prove that the three deceased could only have died when the applicant had the opportunity to kill each of them.
None of the evidence adduced at trial undermined the proposition that it was possible that each of the three deceased died at a time when the applicant had an opportunity to kill them. The "estimate" of Mr Gilchrist must be read in light of his evidence at trial. None of the further evidence relied upon by the applicant in support of his present application tended to prove that it was not possible that each of the deceased had died at a time when the applicant had an opportunity to kill them. For these reasons, no doubt or question as to the applicant's guilt arises as a result of these matters.

[44]

Professor Duflou's evidence about the interval between the deaths of Clodine and Mrs Gonzales and that of Mr Gonzales

It is also necessary to address Professor Duflou's conclusion that a six hour difference between the death of Mrs Gonzales and Clodine on the one hand and Mr Gonzales on the other was "not unreasonable".
I reject the applicant's submission that Professor Duflou applied his "95% level of certainty" to this figure. Given that Professor Duflou purported only to be able to estimate the time of each of the deaths within the relatively broad period of six hours (plus or minus three hours), it is difficult to see how he could express his conclusion as to the six-hour interval between the deaths of Mrs Gonzales and Mr Gonzales with such a degree of precision. For example, if Mr Gonzales died towards the beginning of the time period estimated by Professor Duflou and Mrs Gonzales and Clodine died towards the end, the deaths of the three would have occurred within a shorter period.
Further, Professor Duflou's figure of six hours between the deaths of Mrs and Mr Gonzales is inconsistent with the other evidence in the trial. If one takes the earliest possible time for Mrs Gonzales' death as 5.30pm (by reference to the circumstantial evidence referred to above) and adds 6 hours, the time at which Mr Gonzales died would be 11.30pm. This is inconsistent with Mr Gilchrist's uncontroverted evidence that shortly after 11.55pm on 10 July 2001, when he arrived on the scene, all three deceased were cold to the touch, with observable rigor mortis, which suggests that each had been dead for some time. His evidence was that rigor mortis does not set in until at least thirty minutes after death and his opinion was that the three deceased had been dead for at least an hour before he arrived.
Professor Duflou's more limited opinion that Mr Gonzales died a lengthy period of time after his wife and daughter is not, on analysis, supported by his methodology. However, even taking Professor Duflou's opinion at its highest, it was that "there is only a low chance of all three persons dying within an hour or two of each other, based on body temperature measurement", and that "it is more likely than not Teddy Gonzales died some considerable time after Mary and Clodine Gonzales".
As referred to above, in a circumstantial case, the Crown does not have to prove any particular fact beyond reasonable doubt or, indeed, on the balance of probabilities, unless it is an element of the offence or an indispensable intermediate fact (see Shepherd v The Queen at 579), in which case it must be proved beyond reasonable doubt. Professor Duflou's opinion, as quoted above, is that it was possible (although, in his opinion, the chance was low) that all three persons died within an hour of each other based on the body temperature measurement of each. Thus, his opinion does not exclude the hypothesis consistent with guilt, since it is consistent with it: namely, that the applicant could have killed each of the three deceased within the period of time when he had the opportunity to do so. Nor does it exclude the hypothesis consistent with innocence since it remains possible that Mr Gonzales' death occurred after 8.00pm. I note that this possibility was also left open on Dr Cala's evidence at trial and, therefore, was available to the jury.
I note that the evidence of Professor Duflou does not differ in any significant way from the opinion of Dr Cala, which was adduced at trial. As referred to above, Dr Cala estimated that Mrs Gonzales and Clodine both died at some time between 1pm and 6pm (an interval of five hours) on 10 July 2001 and that Mr Gonzales died at some time between 3pm and 10pm on 10 July 2001 (an interval of seven hours). If one fixes the death of Mrs Gonzales (in respect of whom the greatest amount of circumstantial evidence was available) at 5.40pm, and applies Professor Duflou's range of six hours, the range for Mrs Gonzales' death becomes 2.40pm to 8.40pm. This calculation is substantially similar to that of Dr Cala, which was available to the jury at the trial and can be assumed to have been taken into account by the jury in reaching its verdicts.
In effect, Professor Duflou, an eminent forensic pathologist, has been provided with very limited material, on the basis of which he has given an opinion which, on its face, would appear to create a doubt or question as to the applicant's guilt. However, on closer analysis, when one examines the opinion in light of the uncontroverted evidence in the trial and analyses it, as set out above, within the limitations stipulated in Professor Duflou's report, it becomes apparent that the opinion is not only not inconsistent with the Crown case but also broadly in line with the expert opinion of Dr Cala adduced at trial. The applicant has sought in his submissions to apply a piecemeal approach to proof of the Crown case, which is antithetical to the fact-finding function of a jury in a criminal trial. A jury is required to consider the whole of the evidence. In an application such as this I am obliged to consider the matters raised by the applicant, including further material, such as the report of Professor Duflou, together with the Crown's submissions in the context of the evidence at trial.
In light of the strong direct and circumstantial evidence at trial, and the expert evidence at trial from Mr Gilchrist and Dr Cala referred to above, I do not regard Professor Duflou's opinion as raising any question or doubt about the applicant's guilt.

Parties

Applicant/Plaintiff:

Gonzales

Respondent/Defendant:

The Queen

Legislation Cited (1)

Crimes (Appeal and Review) Act 2001(NSW)ss 78, 79

Cases Cited (12)

DECISION Introduction

On 7 June 2017, Sef Gonzales (the applicant) applied, pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act), for an inquiry into his convictions for the murders of his sister, Clodine; his mother, Mary (Mrs Gonzales); and his father, Teddy (Mr Gonzales) (the three deceased).
The applicant submitted that there is a doubt or question as to his guilt such that the matter should be referred to the Court of Criminal Appeal pursuant to s 79(1)(b) of the Act.
On 10 July 2001 the three deceased were murdered in their family home at North Ryde. On 13 June 2002 the applicant was arrested and charged. He was tried in the Supreme Court before James J and a jury. Verdicts of guilty on the three counts of murder were returned on 20 May 2004. On 17 September 2004 the applicant was sentenced, for each of the three offences of murder, to life imprisonment without parole: R v Gonzales [2004] NSWSC 822 (the sentence judgment).
The applicant appealed against his conviction on nine grounds, none of which was upheld. Grounds 1 to 5 were that evidence was wrongly admitted. Grounds 6 to 9 were that there was misconduct on the part of the Crown Prosecutor. There was no unreasonable verdict ground. The Court of Criminal Appeal dismissed his appeal against conviction on 27 November 2007: Gonzales v The Queen [2007] NSWCCA 321; (2007) 178 A Crim R 232.

The basis for the application Applicable law

Part 7 of the Act relevantly 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. ... 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 principles applicable to the consideration of applications under s 79 were reviewed by Johnson J in Application of Peter James Holland under s.78 of the Crimes (Appeal and Review Act) 2001 [2008] NSWSC 251 (Holland): "[6] The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18]. [7] Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore [2000] NSWSC 364; (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19]. [8] There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9]. [9] The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat [2005] NSWSC 920; (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result."

(1990) 170 CLR 573

(2007) 228 CLR 618

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