Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW)

[2018] NSWSC 787

Supreme Court

New South Wales

Medium Neutral Citation:	Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2018] NSWSC 787
Hearing dates:	On the papers
Decision date:	29 May 2018
Before:	Adamson J
Decision:	Application dismissed.
Catchwords:	CRIMINAL LAW – application under Part 7 Crimes (Appeal and Review) Act 2001 for inquiry into conviction for three murders – no doubt or question as to the applicant’s guilt
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) ss 78, 79
Cases Cited:	Application of Peter James Holland under s.78 of the Crimes (Appeal and Review Act) 2001 [2008] NSWSC 251 Gonzales v The Queen [2007] NSWCCA 321; (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; [2007] HCA 13 Tiwary v R [2012] NSWCCA 193
Texts Cited:	Ulrike Schmidt, ‘Sharp force injuries in “clinical” forensic medicine’ (2010) 195 Forensic Science International 1 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 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
Category:	Principal judgment
Parties:	Sef Gonzales (Applicant) Attorney General of New South Wales (Crown)
Representation:	Counsel: N. Siafakas (Applicant, until at least June 2017) J Davidson (Crown)   Solicitors for Applicant: Nyman Gibson Miralis (until about October 2017) John B Hajje & Associates (from at least January 2018) Solicitors for the Crown: Crown Solicitor’s Office
File Number(s):	2017/171100

DECISION

Introduction

1. 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).

2. 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.

3. 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).

4. 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

5. 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.

..."

6. 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.”

Material provided for the purposes of this application

7. I confirm that I have had regard to the following material for the purposes of this application:

1. The principal application and accompanying material filed on 7 June 2017 prepared by Nyman Gibson Miralis Lawyers and counsel instructed by them;

2. The Crown’s submissions (prepared on behalf of the Attorney-General for New South Wales by counsel instructed by the Crown Solicitor’s Office) filed on 25 July 2017;

3. The applicant’s further submissions filed on 7 November 2017 (prepared by the applicant personally);

4. The Crown’s submissions in response filed on 13 December 2017;

5. The applicant’s further submissions dated 19 January 2018 and filed on 1 February 2018 (prepared by John B Hajje & Associates);

6. The applicant’s further submissions, which included a report from Professor Duflou, filed on 9 April 2018 (prepared by John B Hajje & Associates);

7. The Crown’s submissions in response filed on 7 May 2018; and

8. The applicant’s further submissions filed on 23 May 2018 (prepared by John B Hajje & Associates).

8. I note that the matter was referred to me for consideration on 7 May 2018, following receipt of the Crown’s submissions in (7) above. The applicant’s submissions in (8) above were filed after the matter was referred. I have taken these further submissions into account. I did not consider that it was necessary, in all the circumstances, to have the Crown provide a further response to the applicant’s latest submissions, since that the Crown had, in its earlier submissions, sufficiently addressed all matters raised by the applicant in his submissions filed on 23 May 2018.

The trial

The Crown case

9. The Crown case at trial was that the applicant murdered his immediate family because he wished to inherit his parents’ property without delay. He attempted to fatally poison his mother about 10 days before the murders. The Crown also contended that the applicant put forward false alibis; was responsible for graffiti left by the perpetrator; gave inconsistent accounts; left false trails; and cleaned up and disposed of evidence.

10. In the summing up the trial judge identified a number of matters in the Crown’s circumstantial case against the applicant which provides a useful summary:

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.

11. The Crown submitted, in respect of (5) above, that the jury would readily infer that the applicant was worried that his clothing had been found and that the scientific analysis would incriminate him in the murders.

12. The Crown also relied on what it contended were false alibis and “false trails”. In the sentencing judgment, the sentencing judge summarised evidence of false alibis ([53]-[63]) and false trails ([64]) as follows:

“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.”

The Crown case as to the timing of the deaths of the deceased

13. The Crown case at trial was that Clodine was killed at about 4.30pm and Mrs Gonzales was killed at the earliest at about 5.30pm on 10 July 2001. The Crown case was that Teddy Gonzales was killed at about 6.45pm as he arrived home from work (having made his last telephone call to his home from Wentworthville at 6.23pm), a time which provided the applicant sufficient opportunity to dispose of the evidence before 7.45pm, at which time the applicant had a credible alibi (Mr Dacillo). On the Crown case, there was an interval of approximately 1 hour and 15 minutes between the deaths of Mrs Gonzales and Mr Gonzales. It was common ground that, having regard to the injuries sustained by each of the three deceased, their deaths would have ensued shortly after the infliction of the injuries.

The Crown case as to Clodine’s location when she was killed

14. In closing address the Crown said as follows with respect to the location of Clodine:

“Her phone was on the desk, her books were open. She was in her room. Clearly she was in her room, possibly studying. The inference is that she was at her desk when she was killed.”

The defence case

15. The defence case was that the applicant did not murder his family; that he did not poison his mother; that the motive had not been made out; and that he had established his ultimate alibi. The defence contended at trial that the graffiti evidence was inconclusive; that the times of death did not necessarily accord with the Crown case; that there was a reasonable doubt based on the multiple credible death threats received by the family; and that there was no evidence that the applicant cleaned up and disposed of evidence.

The summing up

16. In his summing up, James J directed the jury that it was not obliged to return the same verdict on all three charges, but “suggested” to the jury that having regard to evidence and the way the case had been presented by the Crown, it “might think” that the Crown had proved either that the applicant was guilty of all three charges, or that the Crown had failed to prove that the applicant was guilty of any of the charges.

The relevant facts

Circumstances of the killings and their aftermath

17. The sentencing judge made findings as to the circumstances of the killings, the creation of the graffiti and what the applicant had done that evening as follows:

“[19]    At approximately 4.30 pm 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 applicant’s motive

18. 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.”

Injuries to the three deceased

19. 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.

Lack of evidence of any clean-up

20. There was no evidence to indicate that the perpetrator(s) cleaned themselves at the crime scene; no evidence of blood-stained clothes or blood-stained 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.

Evidence about the timing of the deaths of the three deceased

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.”

Other evidence available at trial said to create a doubt or question about the applicant’s guilt

35. In his submissions, the applicant relied on the evidence set out below in support of his submissions that there was a question or doubt as to his guilt.

The evidence that Clodine was wearing shoes at the time of death

36. The witness statement of Detective Senior Constable Robert Gibbs and the autopsy report prepared by Dr Cala were to the effect that Clodine was wearing shoes when she was killed. As referred to below, the applicant relied on this evidence in support of a submission that she must have been killed as soon as she entered the house.

37. The evidence at trial was that there was a large shoe cupboard in the house and it was the practice of the members of the family to take off the shoes they had been wearing outside when they entered the house. There was no evidence that Clodine had worn the shoes found on her body outside on the day of the murders.

38. The evidence at trial also included a set of photographs taken at the Gonzales family home, several of which showed the condition in which Clodine was found when police arrived and depicted her wearing shoes.

Clodine’s text message to Michelle Dacillo

39. The evidence established that Clodine sent a text message to Michelle Dacillo referring to “do[ing] something with her mum that afternoon”. There was evidence at trial that Mrs Gonzales left work at Blacktown at around 4.50pm with Patricia Tonel, Mr Gonzales's secretary in his legal practice, and drove to the DX office at Blacktown. Ms Tonel’s evidence was that Mrs Gonzales had already done her shopping.

Evidence about the location of Clodine’s blood

40. Detective Senior Constable Gibbs gave evidence at the trial that Clodine Gonzales's blood was found on the eastern jamb of the laundry door. Detective Gibbs was not cross-examined on this finding.

41. There was physical evidence consistent with the attack on Clodine having occurred in her bedroom. Blood smears were found on the wall of her bedroom that were consistent with having been caused by the movement of her head across the wall while blood-soaked. There were four marks found in the wall above Clodine's head. Detective Gibbs gave evidence that nothing found in Clodine's bedroom (or elsewhere in the house) could have caused those marks. Detective Gibbs's evidence was that he had formed the view that the attack upon Clodine took place “throughout her bedroom and mostly towards the area where she was located”.

Evidence of the applicant’s appearance on the evening of 10 July 2011 and on 11 July 2011

42. On the night of the murders, the applicant and Mr Dacillo went out together in the Sydney CBD for a few hours. Mr Dacillo did not observe that the applicant had any marks, injuries or signs of struggle. When the three deceased were discovered, ambulance paramedics and police officers closely observed the applicant and did not observe any injury or marks on him to indicate that he had been involved in a struggle or other physical altercation. On 11 July 2001 the applicant was taken to Gladesville Police Station, where police examined him. They removed his clothes and swabbed his hands and arms. While he was naked, police inspected his body for signs of injury and noted none.

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.

43. 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.”

Submissions

The applicant’s submissions

54. The applicant relied on a number of factors which he submitted would give rise to a doubt or question as to his guilt.

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

55. 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.

56. 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.

57. 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.

Evidence as to the timing of the deaths of the deceased

The timing of Mr Gonzales’ death

58. The applicant submitted that, because Mr Gilchrist’s opinion (based on the Gilchrist report referred to above) was that Mr Gonzales “would have been killed between 8.03pm and 10.03pm” (applying the estimate of "life extinct all bodies 2-4 hours" noted in his report at 12.03am), he could not be guilty of his father’s murder (which on the Crown case occurred some time before 8.03pm). As the applicant had an alibi for that period after about 7.45pm (being in the company of Mr Dacillo), he submitted that his involvement in his father’s death was positively excluded; or that, at least, there was a doubt or question as to his guilt.

59. The applicant further submitted that if he was not guilty of his father’s murder, he was not guilty of the other two murders on the basis of what James J said in the summing up and the Gilchrist report, which he submitted established that all three deceased were killed between 8.03pm and 10.03pm.

The timing of Mrs Gonzales’ and Clodine’s deaths

60. The applicant relied on the following four items, which he submitted contradicted the Crown case theory as to the time of Mary and Clodine Gonzales' deaths. He argued that these matters give rise to a reasonable likelihood that Mrs Gonzales and Clodine were killed at the same time and therefore could not both have been killed by him.

(1)   The evidence that Clodine was wearing shoes when she was killed

61. The applicant asserted in his submissions dated 15 October 2017 that “[s]hoes were not worn in the upstairs area of the house where Clodine's body was found”. He submitted, on that basis, that Clodine must also have been killed as soon as she arrived at the house, before she could remove her shoes. The applicant alleged that “critical evidence” about how Clodine appeared when she was found was “intentionally withheld” by the Crown at trial.

(2)   The text message sent by Clodine to Michelle Dacillo

62. The applicant raised the possibility that, as Mrs Gonzales was occupied (with Ms Tonel) until some time after 4.50pm, she met Clodine as foreshadowed in the text message after that time. The applicant postulated that they met in some unspecified place after 4.50pm and arrived home together later, which would leave insufficient time for him to kill them and clean-up all incriminating items before he met Mr Dacillo at about 8pm.

(3)   Evidence that Clodine’s blood was found on the door jamb to the laundry

63. The applicant submitted that the finding of Clodine’s blood on the door jamb to the laundry contradicted the Crown case (reflected in the passage from closing address set out above) that Clodine was attacked in her room. The applicant submitted that “the attacks on Clodine may have begun downstairs”, based on the swipe marks on the jamb of the laundry door.

(4)   Dr Cala’s evidence about time of death

64. The applicant submitted that Dr Cala “could not account for the full hour which the Crown had placed between the deaths of Mary and Clodine” and that this gave rise to a doubt or question about his guilt.

65. The applicant submitted that the uncertainty of the time of death could not exclude that Mrs Gonzales and Clodine had been killed simultaneously and that there was a reasonable doubt or question as to whether he, as a single perpetrator, could have achieved the double killing simultaneously, particularly as he was not shown to have been injured, covered in blood, or have engaged in any acts of cleaning up the incriminating articles.

The inability of the Crown to prove time of death

66. 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.

67. 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.

68. 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.”

69. 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.

The evidence of Professor Duflou

70. The applicant made the following three submissions on the reliability of Professor Duflou’s report. First, as Mr Gonzales died “some six hours after the other two members of his family”, it was highly unlikely, if not impossible, that the applicant was responsible for his father’s murder. Secondly, given that the Crown case was that the same perpetrator was responsible for the deaths of all three victims, the applicant submitted that, if he was not responsible for the death of Mr Gonzales, he was not responsible for the deaths of Mrs Gonzales and Clodine. Thirdly, the applicant contended that, if Mrs Gonzales died at 5.30pm (on the Crown case) and Mr Gonzales died about 6 hours afterwards, Mr Gonzales must have died after 8.00pm, with the consequence that the applicant would not have had sufficient time to dispose of incriminating evidence. The applicant contended that these matters gave rise to a doubt or question about his guilt.

71. The applicant placed particular reliance on the difference of 4.8°C between the rectal temperature of Mrs Gonzales and that of Mr Gonzales and submitted that, in light of Professor Duflou’s report, it could be inferred that Mr Gonzales died much later than his wife and daughter. The applicant submitted that if Mr Gonzales was killed at about 10.30pm, this accorded with the estimate in Mr Gilchrist’s report that the death occurred 2-4hours before the bodies were discovered.

Consideration

Potential injury to the perpetrator

72. The further evidence relied upon by the applicant goes no higher than establishing that it was possible that the perpetrator sustained injuries when inflicting the fatal injuries on the three deceased, either from any of the deceased or from the unguarded knife used by the perpetrator. The evidence of Crown witnesses was that they did not notice any injuries to the applicant when they saw him on the night of the killings.

Unintended self-inflicted injury from the knife

73. The three academic articles relied on by the applicant raise no more than the possibility that a perpetrator will suffer a self-injury in the course of an attack where the weapon is a knife. They provide no support for the proposition which the applicant sought to derive from them: namely, that there was a likelihood of such an injury being sustained. The data in the articles were not specifically related by expert evidence or otherwise to the present case. There was no apparent link to suggest that the perpetrator in the present case was, because of any particular feature of the attacks, likely to suffer an injury. While proof of injury to the applicant, whether sustained by knife or otherwise, would have strengthened the Crown case, lack of any evidence that the applicant suffered injury from a knife or otherwise did not particularly affect the strength of the defence case, although it was consistent with the defence case that the applicant had no involvement in the killings.

The possibility that any one of the three deceased were able to inflict injuries on their perpetrator in self-defence

74. Although Dr Raymond and Dr Cala opined that the attacks on each of the three victims were “quite sustained”, none of the expert evidence referred to above established that it was any more than “possible” that any of the three deceased inflicted, or was even capable of inflicting, injuries to their perpetrator such as would give rise to any physical sign, even to someone, such as the applicant, suffering from dermographic uritcaria (assuming he was suffering from that condition at the time). As the Crown submitted, it could not be said to be more than possible that a victim who tries to ward off a perpetrator is able to inflict an injury. It is a purely speculative exercise to consider what type of injury each of the three deceased might have been able to inflict on their perpetrator; the realistic likelihood of their being able to do so, having regard to the injuries progressively inflicted upon them by the perpetrator; where, or how, such an injury would have been able to be inflicted on the attacker; or whether such an injury would be expected to be discernible by Mr Dacillo (who saw the applicant clothed from about 8pm and had no reason to be looking for any form of injury on the parts of his body that were visible) or by police and ambulance officers around midnight on the night of the murders.

75. Moreover, the attacker was armed with a blunt instrument when assaulting Clodine and at least one knife with which the three deceased were stabbed. There was no evidence that the victims had any available weapon to defend themselves or inflict injury on their perpetrator. The only hypothesis posited by the applicant for the infliction of any such injury on the perpetrator was unintentional sharp force injury from the perpetrator’s use of a knife (see above).

Potential for blood transfer from the deceased to their perpetrator

76. 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.

77. 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.

78. 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.

76. 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.

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

80. 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.

81. 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.

82. 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.

83. 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.”

84. 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.”

85. 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].

86. 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].

87. 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.

88. The circumstantial case in Tiwary was not comparable to the strength of the Crown's circumstantial case against the applicant.

Dermographism

89. The issue of dermographism was not raised at trial. However, even on the assumption that the applicant suffered from untreated dermographism at the time of the murders, the new material from Dr Leow and Professor Hilton raises no more than a possibility that physical contact during a struggle led to redness and the appearance of wheals at points where pressure was applied to the applicant's skin during a struggle.

90. If, as at the time the applicant was examined by Dr Leow in 2011, the redness or wheals started to resolve after 10 minutes, it could not be the case that the fact nobody observed such markings on the applicant's skin on the night of the murders gives rise to any doubt or question as to his guilt. Professor Hilton noted that the obvious manifestations of dermographism may be evanescent, disappearing in something less than an hour. As the applicant was not examined in the immediate post-event period by a medical practitioner or anyone else who had the expertise to confirm or exclude the presence of such manifestations, the subsequent diagnosis of dermographism does not give rise to a doubt or question as to the applicant's guilt.

91. Even if, as Dr Leow posited, a stress reaction on the part of the applicant caused a more prolonged duration of the manifestations of dermographism on the night of the murders, there is no reason to think that Mr Dacillo would be expected to have noticed such redness as the applicant was clothed at the time. There was no evidence of the applicant's skin having been examined, unclothed, until his clothing was obtained at Gladesville Police Station at 4.58am, nearly ten hours after the evidence suggested that Mr Gonzales was killed. The academic articles relied on by the applicant do not support the proposition that an eruption of dermographism would have remained visible until that time.

The timing of the deaths of the three deceased

Mr Gilchrist’s estimate in his report

92. In my view, the suggestion that it was Mr Gilchrist’s opinion that Mr Gonzales died between 8.03pm and 10.03pm (based on the subtraction of 2-4 hours from 12.03am) is a distortion. Mr Gilchrist’s “estimate” in the (untendered) Gilchrist report was wholly undermined by the caveats on opining as to time of death which he outlined in his evidence at trial (summarised above). There was no reason to put the Gilchrist report before the jury, as such opinion evidence is conventionally adduced orally. As the figure of 2-4 hours was merely an “estimate”, its admissibility was questionable. Moreover, there was no injustice as it was not suggested that the Gilchrist report was not served. 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.

Alleged simultaneous killings of Mrs Gonzales and Clodine

93. The applicant’s submission that it was “physically impossible” for him to have killed both his mother and sister simultaneously whilst remaining unscathed amounts to no more than a repetition of his earlier submission about the relevance of the lack of evidence of injury or blood stains on his clothing or person considered above.

The evidence that Clodine was wearing her shoes when she was killed

94. The evidence that Clodine was wearing her shoes when she was killed does not give rise to any reliable inference about the timing of her death since it was not established that the shoes she was wearing had ever been worn outside or were the type of shoes which would, for that reason, have been removed on entry to the house, in accordance with the family’s usual practice. I reject the applicant’s submission that the Crown withheld evidence of Clodine’s appearance when she was found. As referred to above, the Crown tendered a series of photographs taken of Clodine when police and ambulance officers attended the family home. The jury would therefore have seen that she was wearing shoes when she was killed.

The text message from Clodine to Michelle Dacillo

95. The applicant’s theory that his mother and sister had met up at some time after 4.50pm on 10 July 2001 (after Mrs Gonzales had parted from Ms Tonel) was not supported by any evidence. The reference in Clodine's text message to Ms Dacillo to “do[ing] something” with her mother does not indicate that the “something” Clodine was referring to was necessarily to be done outside the family home. All that can be inferred from the content of the text message, assuming that Clodine was being honest with Ms Dacillo in the text message, was that whatever she was doing with her mother precluded Clodine from meeting with Ms Dacillo. This matter raises no doubt or question about the applicant’s guilt.

The finding of Clodine’s blood on the door jamb of the laundry

96. The applicant has, in my view, misapprehended the effect of the Crown’s closing address. The Crown referred to the placement of Clodine's phone and books on her desk as support for the inference that she was in her room when she was attacked. The Crown did not submit that the entirety of the attacks on Clodine occurred in her bedroom.

97. Further, it is difficult to see how the presence of Clodine’s blood elsewhere in the house assists the applicant. As referred to above, there was substantial evidence as to the quantity and character of the blood smears and other marks on the wall which indicated that the attack on Clodine took place in her bedroom. The presence of blood on the door jamb to the laundry does not give rise to a doubt or question as to his guilt.

Dr Cala’s evidence about the respective times of death of Mrs Gonzales and Clodine

98. The applicant’s submission that Mrs Gonzales and Clodine must have been killed at the same time (and he could not have killed them simultaneously) involves a misapprehension of the effect of Dr Cala's evidence, which, as referred to above, placed the deaths of the two women within the same five hour range.   

99. The four items referred to by the applicant in relation to the times of their deaths (that Clodine was wearing shoes; the text message she sent to Ms Dacillo; the finding of blood on the laundry door jamb; and the expert evidence of Dr Cala) do not establish a “reasonable likelihood” that the two women were killed at the same time. Even if, contrary to my view, that possibility arose, I do not accept the applicant’s additional proposition that he could not have “remain[ed] unscathed” and must instead have been injured if he had killed both his mother and sister simultaneously. For the reasons set out above, I reject that contention.

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

100. 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.

101. 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.

102. 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.

103. 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.

The report of Professor Duflou

104. The principles concerning circumstantial evidence also apply to consideration of the report of Professor Duflou. Whereas Professor Duflou, apparently, looked only at the rectal temperatures of each of the three deceased and the ambient temperatures and calculated the times of death by reference to these figures, the jury was obliged to take into account the whole of the evidence at trial.

105. The flaw in the applicant’s submissions is that they take something which is uncertain (the time of death) and purport to treat it as a known and certain matter from which other matters can reliably be extrapolated. That Professor Duflou was prepared to couch his opinion in terms such as “95% level of certainty” only serves to undermine its reliability (or his assessment of its reliability) when it is compared with the circumstantial evidence in the trial (referred to below) which established, by reference to uncontroverted or agreed evidence, that both Mrs Gonzales and Clodine were alive well after the upper limits of the ranges for their times of death estimated by Professor Duflou. Furthermore, the exactitude with which Professor Duflou expressed his conclusion would appear to be inconsistent with his own statement (referred to above) that “determination of post mortem interval is inherently unreliable".

Evidence inconsistent with Professor Duflou’s opinion about the time of Mrs Gonzales’ death

106. The non-expert evidence at trial as to the time of Mrs Gonzales’ death was as follows. Mrs Gonzales was at work in Blacktown during the day of 10 July 2001. The last recorded use of her telephone was at 4.11pm. The evidence of Ms Tonel establishes that Mrs Gonzales dropped Ms Tonel off at Blacktown railway station at about 4.50pm. The evidence of the applicant and a police officer was that it took about 30 to 40 minutes to drive from Blacktown to North Ryde. When Mrs Gonzales's body was found she was still wearing her shoes and work clothes and her handbag was nearby. Groceries she had purchased shortly after 4pm that afternoon were still in their bags in the entrance area. On the basis of this evidence. Mrs Gonzales could not have arrived home and in turn, been killed significantly prior to 5.30pm, 6 ½ hours after the time of death estimated by Professor Duflou and 3 ½ hours after the upper limit of the range estimated by him.

Evidence inconsistent with Professor Duflou’s opinion about the time of Clodine’s death

107. The non-expert evidence at trial as to the time of Clodine’s death was as follows. Telephone records established that Clodine last used her mobile phone at approximately 4.04pm on 10 July 2001 to send a text message, five hours after the time of death estimated by Professor Duflou and two hours after the upper limit of his estimated range.

Evidence inconsistent with Professor Duflou’s opinion about the time of Mr Gonzales’ death

108. The non-expert evidence at trial as to the time of Mr Gonzales’ death was as follows. The last recorded use of Mr Gonzales’ mobile telephone was a call made at 6.23pm to the landline of his home address. His body was found in the entryway to the house and he was still wearing the clothes and shoes he had been wearing at work. His briefcase was nearby. He usually arrived home at about 7pm. These matters indicated that he was killed shortly after arriving home.

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

109. 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”.

110. 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.

111. 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.

112. 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”.

109. 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.

110. 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.

111. 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.

112. 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.

Conclusion

117. The applicant has not raised doubt as to James J's findings concerning hismovements on the night of the murders, or the observations of his car at the scene. The applicant’s submissions have not called into question other aspects of what Giles JA identified on appeal as a "certainly strong" circumstantial Crown case.

118. The report of Professor Duflou does not raise a question or doubt as to the applicant’s guilt. The expert opinions as to the timing of the deaths of the three deceased were, by their nature and, in terms, inexact. Neither the evidence at trial, nor the further material relied upon by the applicant established that it was not possible for the applicant to have committed the three murders in the time available to him. All of the evidence was to the effect that there was, at least, a possibility that the three deceased died in the period when the applicant had the opportunity to kill them. The further evidence did not, on proper analysis, add materially to the evidence at trial. The discrepancy between Professor Duflou’s ranges for the time of death and the circumstantial evidence at trial which established that Mrs Gonzales and Clodine were alive when he opined that they were, on the basis of subsequent body temperature readings, dead, is an indication of the well-established difficulty of estimating times of death.

119. I do not regard the material relied upon, or the submissions made by the applicant, as giving rise to a relevant sense of unease or disquiet about his guilt of each of the three murders. The further material, the evidence at trial and the applicant’s submissions have not produced any doubt or question about his guilt for the murders of his parents and his sister. Accordingly, the application is dismissed.

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Decision last updated: 29 May 2018