Gonzales v R - [2007] NSWCCA 321

No judgment structure available for this case.

Reported Decision: 178 A Crim R 232

New South Wales

Court of Criminal Appeal

CITATION: Gonzales v Regina [2007] NSWCCA 321
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22 and 23 August 2007

JUDGMENT DATE:
27 November 2007

JUDGMENT OF: Giles JA at 1; Howie J at 178; Fullerton J at 179

DECISION: (1) Extend the time for filing the notice of appeal and application for leave to appeal up to and including 21 May 2007; (2) Dismiss the appeal against conviction; (3) Grant leave to appeal against sentence but dismiss the appeal.

CATCHWORDS: EVIDENCE - admissions by accused - giving false alibi - not recorded - whether made inadmissible by s 281 Criminal Procedure Act - whether inadmissible in absence of objection at trial - whether evidence available at trial admissible on appeal to establish inadmissability - whether accused a suspect when admissions made - relevance of some evidence. CRIMINAL LAW - conduct of Crown Prosecutor - whether departure from standards of fairness in cross-examination and address to the jury - whether error in putting in cross-examination that accused said Crown witnesses were wrong. SENTENCING - life sentence mandatory if culpability so extreme that community interest can only be met by a life sentence - regard to youth and possibility of rehabilitation - regard to role of Parole Board - whether sentences out of line with the pattern of sentences.

CASES CITED: Adanguidi v R [2006] NSWCCA 404;
De Gruchy v The Queen (2002) 211 CLR 85;
Gallagher v The Queen (1986) 160 CLR 392;
Kelly v The Queen (2004) 218 CLR 216;
Knight v R (2006) 164 A Crim R 126;
Lawless v The Queen (1979) 142 CLR 659;
Libke v The Queen (2007) 81 ALJR 1309;
Livermore v R [2006] NSWCCA 334;
Mickelberg v The Queen (1989) 167 CLR 259;
Palmer v The Queen (1998) 183 CLR 1;
Papakosmas v The Queen (1999) 196 CLR 297;
Perpetual Trustee Company Ltd v Khosaba [2006] NSWCA 41;
R v Blick (2000) 111 A Crim R 326;
R v Booty (CCA, 19 December 1994, unreported);
R v Buckley (2004) 149 A Crim R 122;
R v Chai [2002] NSWCCA 512;
R v Cook [2004] NSWCCA 52;
R v Crump (CCA, 30 May 1993, unreported);
R v De Gruchy (2000) 110 A Crim R 271;
R v Denyer (1995) 1 VR 186;
R v Fernando and Fernando (1997) A Crim R 533;
R v Gapper[2007] SASC 119;
R v GH (2000) 105 FCR 419;
R v Gilbert (CCA, 10 December 1998, unreported);
R v Glen [1999] NSWSC 1018;
R v Harris (2000) 50 NSWLR 409;
R v Horton (1998) 45 NSWLR 426;
R v Kaddour [2005] NSWCCA 330;
R v Lawrence (1980) 1 NSWLR 122;
R v Leak (1969) SASR 172;
R v Leonard (CCA, 7 December 1998, unreported);
R v Lewis [2003] NSWCCA 180;
R v Liristis (2004) 146 A Crim R 547;
R v Lyberopoulos [2002] NSWCCA 280;
R v McCullough (1982) 6 A Crim R 274;
R v Merritt (2004) 59 NSWLR 557;
R v Praturlon (CCA, 29 November 1985, unreported);
R v Reid [1999] NSWCCA 258;
R v Rich (1998) 102 A Crim R 165;
R v Robinson [2000] NSWSC 972;
R v Robinson [2000] NSWCCA 359;
R v Roulston (1976) 2 NZLR 644;
R v Rugari (2001) 122 A Crim R 1;
R v Slack (2003) A Crim R 314;
R v Spathis and Patsalis [2001] NSWCCA 476;
R v Taouk (2005) 154 A Crim R 69;
R v Valera [2002] NSWCCA 50;
R v Whitmore [1999] NSWCCA 75;
Selsam Pty Ltd v McGuiness (2000) 49 NSWLR 262;
Shaw v The Queen (1952) 85 CLR 365;
Whitehorn v The Queen (1983) 152 CLR 657.

PARTIES: Sef Gonzales - Appellant
The Crown - Respondent

FILE NUMBER(S): CCA 591/07

COUNSEL: P Byrne SC & G Brady - Appellant
D Frearson SC & J A Girdham - Crown

SOLICITORS: Dennis Miralis - Appellant
S Kavanagh (Solicitor for Public Prosecutions) - Crown

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 70068/03

LOWER COURT JUDICIAL OFFICER: James J

LOWER COURT DATE OF DECISION: 17 September 2004 (Sentence)

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Gonzales [2004] NSWSC 822

CCA 591/07
SC 70068/03

GILES JA
HOWIE J
FULLERTON J
Tuesday 27 November 2007

GONZALES v REGINA

Judgment

1 GILES JA: The Gonzales family comprised Teddy, his wife Mary, and their son Sef and daughter Clodine. On 10 July 2001 Teddy Gonzales, Mary and Clodine were murdered at the family home at North Ryde. Each was repeatedly stabbed and Clodine was subjected to strangling and bashing with a blunt instrument. After a trial before James J and a jury commencing on 5 April 2004, on 20 May 2004 Sef (“the appellant”) was found guilty and convicted of the murders. On 17 September 2004 he was sentenced to life imprisonment for each of the three offences. He appeals against conviction and applies for leave to appeal against sentence.

Extension of time

2 An appeal and an application for leave to appeal may be initiated by giving a notice of intention to appeal or to apply for leave to appeal within 28 days after the conviction or sentence: Criminal Appeal Act 1912, s10(1)(a). A notice of appeal or any application for leave to appeal must be filed within six months thereafter (Criminal Appeal Rules, rr 3A(1), 3B(1)(a). That time may be extended: r 3A(2).

3 The appellant filed a notice of intention to appeal and to apply for leave to appeal on 22 September 2004. Applications to extend the time for filing the notice of appeal and the application for leave to appeal were granted on a number of occasions, the last extension being to 22 August 2006. Although some grounds of appeal and submissions were thereafter filed, a notice of appeal and application for leave to appeal (dated 27 March 2007) were not filed until 21 May 2007. Extension of time was thus necessary.

4 The appellant relied on an affidavit of his solicitor, which recounted steps to obtain advice as to the merits of an appeal and, the two being connected, difficulty in obtaining funding. The funding became available by the end of 2006.

5 The Crown drew attention to R v Lawrence (1980) 1 NSWLR 122, in which Nagle CJ at CL and Yeldham J said at 148 that it should not be assumed that delays in filing notices of appeal or applications for leave to appeal would automatically be excused, and that where any considerable delay had occurred exceptional circumstances would be required before the appeal was permitted to proceed. It was said that finality in the interests of the Crown and the community represented by the Crown, and in the interests of administration of the law generally, should be weighed together with the interests of the appellant. The Crown did not, however, press its objection to an extension of time beyond referring to these matters and submitting that an extension of time should be refused because there was no merit in the grounds of appeal.

6 The affidavit of the appellant’s solicitor included that the Registry of the Court of Criminal Appeal “were regularly advised of the delays that I was experiencing”, and I infer that the Crown was aware from the beginning that the appellant wished to exercise his appellate rights and was seeking to be in a position to do so. The contrary was not suggested in the Crown’s submissions. The delay was explained up to a point, although not fully. Apart from finality as a consideration, it could be relevant that if the appeal against conviction was successful and a new trial was ordered (and the appellant accepted that success would bring a new trial rather than an acquittal), the lapse of time would inhibit the presentation of the Crown case at the new trial. The Crown did not, however, advert to this as a factor in its rather muted opposition to extension of time.

7 The manifest importance to the appellant of his conviction and the life sentences imposed on him is a significant reason in favour of extension of time, even if the grounds of appeal and the submissions in support of them prove on examination to be unpersuasive. In the circumstances, the time for filing the notice of appeal and application for leave to appeal should be extended up to and including 21 May 2007.

The offences

8 In his remarks on sentence the judge found as the objective facts of the offences consistent with the jury’s verdicts of guilty, under the heading “Background and Events of 10 July 2001” -

“11 In early July 2001 the prisoner was living with his parents and his sister in the family home at 6 Collins Street, North Ryde. The prisoner’s father was a solicitor, who conducted a legal practice at Blacktown. The prisoner’s mother worked as an office manager in her husband’s legal practice. The prisoner was a university student taking legal subjects in a Bachelor of Arts degree course at Macquarie University.

12 The prisoner’s sister Clodine was a high school student, generally living and attending school in Melbourne. Her parents had disapproved of a boy in Sydney with whom she had formed a relationship and had sent her to live with one of Mrs Gonzales’ sisters in Melbourne. However, in early July 2001 Clodine was spending school holidays with her parents and brother in Sydney. She was due to return to Melbourne soon after 10 July.

13 On 10 July 2001 Mr Gonzales and Mrs Gonzales went to work at Mr Gonzales’ legal practice in Blacktown. They travelled to Blacktown in separate vehicles. Clodine remained at home.

14 On the morning of 10 July 2001 the prisoner went to Macquarie University and then returned home. He then travelled in his own car, which had been a gift to him from his parents, to his father’s office at Blacktown. He arrived at his father’s office about 1 o’clock in the afternoon.

15 At his father’s office the prisoner attempted to fix one of the office computers which was not functioning properly and he made some telephone calls for the purposes of the legal practice.

16 The prisoner left his father’s office at some time between 3 o’clock and 4 o’clock in the afternoon and drove in his car to the home at North Ryde. It took him about thirty to forty minutes to travel in his car from the office at Blacktown to the home at North Ryde. On arriving home he parked his car in an open carport at the front of the house.

17 The prisoner had arrived home by the time (which was some time between 4.15 and 4.30) that Mariella Pavone, a client of Mr Gonzales, deposited some documents in the letterbox at the front of the house and observed the prisoner’s car in the open carport.

18 The records for the use of Clodine Gonzales’ mobile telephone show that a text message using the mobile telephone was sent at 4.04 pm on 10 July 2001 and Clodine was then still alive.

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.

31 At about 11.30 in the evening of 10 July a neighbour John Atamian, who lived at 7 Collins Street, that is opposite 6 Collins Street, was woken by the sound of the prisoner banging on the wall of Mr Atamian’s bedroom. Mr Atamian went outside and the prisoner told him that all of the prisoner’s family had been killed. Mr Atamian declined to enter the house at 6 Collins Street. Another neighbour Shane Hanley, who was watching television, heard someone calling for help and went outside. The prisoner told Mr Hanley that his family had been shot and that they were all dead. The prisoner appeared to Mr Hanley to be distraught. The prisoner and Mr Hanley entered the house at 6 Collins Street. Mr Hanley saw the dead bodies of Mr Gonzales and Mrs Gonzales. The prisoner straddled the dead bodies of each of his parents, calling out “Papa Papa” or ”Mummy Mummy”. He gave the appearance of being overwhelmed with grief.

The grounds of appeal

9 There were nine grounds of appeal against conviction and three grounds in the application for leave to appeal against sentence. The grounds of appeal against conviction were of two kinds. 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. Two grounds of appeal against sentence asserted particular errors, the third was that the sentences were manifestly excessive.

10 In a trial extending over many weeks the evidence was extensive. It is not necessary for the grounds of appeal to canvass the whole of the evidence; sufficient explanation can be given for each ground of appeal.

Conviction appeal: Ground 1

11 The ground of appeal was stated in a rather narrative manner. Its substance was that a statement made by the appellant to the police early in the morning of 11 July 2001 was inadmissible, and was wrongly admitted, because a tape recording was not available as required by s 281 of the Criminal Procedure Act 1986.

12 Section 281 relevantly provides -

“ 281 Admissions by suspects

(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and

(b) that was made in the course of official questioning, and

(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or

…

(4) In this section:

investigating official means:

(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), …

official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.

reasonable excuse includes:

(a) a mechanical failure, or

(b) the refusal of a person being questioned to have the questioning electronically recorded, or

(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.

tape recording includes:

(a) audio recording, or

(b) video recording, or

13 The statement became Exhibit AAG at the trial, and was also part of Exhibit AAH. No objection was taken to the tender of the statement at the trial, and leave to allow the ground of appeal is necessary: Criminal Appeal Rules, r 4.

14 The statement included an account of the appellant’s movements on the afternoon of 10 July 2001 until he arrived at Sam Dacillo’s house at about 8 pm. He left his father’s office at Blacktown at 4.30 pm to 5.00 pm, going to meet Sam Dacillo. On his way he received a text message from Sam Dacillo that Sam Dacillo had a basketball game that evening and would be unable to meet him as had been arranged. He rang his mother on his mobile, but did not get through to her; he rang his home, but nobody answered the phone. He arrived home at about 6 pm and parked in the carport. He did not enter the house, but received a phone call from Sam Dacillo and they arranged to meet at 8 pm. A light was on in the kitchen area, but the dog was still tied up and he thought no one was home. He tried to telephone again but still got no answer. He drove off. He decided to visit a friend, Raf De Leon, at Kingsgrove. He drove to the Kingsgrove area, but could not find the address in his old street directory. It was past 7 pm so he returned to meet Sam Dacillo at Sam Dacillo’s house.

15 This account of the appellant’s movements was maintained for some time after 11 July 2001, including in a “walk through” interview by the police at 6 Collins Street on 16 July 2001 and in further interviews by the police on 1 August and 3 August 2001. However, it could not stand with the appellant’s car being in the carport at some time between 4.15 and 4.30 pm as seen by Mariella Pavone and at about 6 pm as seen by Emily Luna, or with information supplied to the police by Sam Dacillo and records of the use of the mobile telephones of the appellant and Sam Dacillo.

16 In January 2002 the police told the appellant that they did not believe he had been truthful, and that they considered him responsible for the murders. The appellant abandoned this account of his movements. He told the police that he had not told the truth about his movements between leaving his father’s office and arriving at Sam Dacillo’s house, amongst other reasons because in fact he had gone to a brothel and was embarrassed at that becoming known to family members present at the interview on 11 July 2001. He said that he had left his father’s office earlier, had parked his car in the carport, but had not gone into the house and had walked to a service station on Wicks Road and had taken a taxi to Chatswood station, from where he went to the brothel, and had taken a taxi back to Wicks Road.

17 The appellant gave evidence at the trial, and agreed that in the statement he told the police “a whole series of lies”, although he also said to the effect that it was really one lie. Many components of the account were put to him serially, and he agreed that each was a lie. He said that he lied to protect himself from embarrassment, and that he did not believe that the times were important because he assumed his family had been killed after he had left to go to Sam Dacillo’s house.

18 The account of the appellant’s movements given in the statement was at times referred to as the first alibi. The account of going to a brothel was at times referred to as the second alibi, and was comprehensively controverted by evidence at the trial; some reference to this will be made in dealing with other grounds of appeal. The second alibi must have been rejected by the jury. The falsity of the two alibis was prominent in the Crown case. The appellant submitted, in substance, that leave should be granted under r 4 because the admission into evidence of the statement provided an important foundation for the prosecution case, and its falsity was used tellingly against him in cross-examination. He said that the admission caused the trial to miscarry.

19 As has been noted, the account of the appellant’s movements given in the statement was repeated in further interviews on 16 July 2001 and 1 and 3 August 2001. Ground 2 in the conviction appeal was that the recorded interviews then occurring were themselves inadmissible, and it was acknowledged that Ground 1 led nowhere if the first alibi was otherwise in evidence and available to be used against the appellant. The Crown submitted that, quite apart from the later interviews, evidence given by Sam Dacillo provided an alternative source for the first alibi. Sam Dacillo gave evidence that the appellant had told him that, after leaving his father’s office, he went looking for Raf De Leon’s house in the Blacktown area but could not find it. Further, there was much other evidence, particularly from Detective Inspector Sheehy and in a recorded interview in April 2002 in which the appellant detailed the second alibi, of the appellant acknowledging that he had told lies to the police in his first account of his movements, none of which was objected to or the subject of a ground of appeal. It is difficult to see that the giving of the false first alibi and its use against the appellant in cross-examination would not have inevitably come out even if the statement of 11 July 2001 and the records of interview later in 2001 had not been admitted.

20 It is not necessary to decide whether or not for that reason alone leave under r 4 should be refused, since the ground of appeal in any event is without substance. However, so far as the appellant submitted in relation to leave under r 4 that the failure to object to the statement could not have been for tactical advantage the submission is misconceived. If counsel for the appellant had considered objecting to the statement, recognition of other evidence of the giving of the false first alibi could lead to the forensic decision not to do so. That counsel took an objectively sound course at trial, not for tactical advantage, is itself material to whether leave should be granted under r 4.

21 Section 281 refers to admissions. The Crown accepted that the statement contained admissions for the purposes of s 281, being the appellant’s account of his movements (see R v Horton (1998) 45 NSWLR 426; compare R v GH (2000) 105 FCR 419, but there is no occasion to consider the correctness of R v Horton). The admissions were made in the course of official questioning within the meaning of s 281. Subject to a prior question, inadmissibility pursuant to s 281 turns on -

(a) whether on 11 July 2001 the appellant “was or could reasonably have been suspected by an investigating official” of having committed the murders (“suspicion”: s 281(1)(a)); and if so

22 The prior question is whether the admissions in the statement were inadmissible in the absence of an objection to their admissibility. R v Reid [1999] NSWCCA 258 was concerned with s 424A of the Crimes Act 1900, the predecessor to s 281 and although differently structured using the same key words that “evidence of an admission is not admissible unless … “. Spigelman CJ held at [5] that “is not admissible” should be construed as meaning “is not admissible over objection”, saying that the usual course of proceedings in trials under the adversary system requires objection to be taken to evidence and that the usual practice was “part of the total context in which Parliament used these words”. The reasons of Smart AJ were less explicit, but at [61] his Honour said that s 424A was “enacted against the long-standing and well-known practice of the Court generally not to reject evidence led by a party until a legitimate objection is taken by the other party”; his Honour went on to point out that the parties were generally left to conduct their own cases and they should know, which the Court did not, whether there was a reasonable excuse why a tape recording could not be made. Greg James J at [11] agreed with Smart AJ, and also with the “matters raised by the Chief Justice”.

23 The status of evidence to which objection could successfully have been taken but which was not objected to is not entirely clear; see Weinberg, “The consequences of failure to object to inadmissible evidence in criminal cases” (1978) 11 MULR 408 and the discussion in Cross on Evidence, Australian ed, paras 1650-1680. The construction of “is not admissible” as proposed by the Chief Justice is generally in accord with principles whereby such evidence may be used in proof of an issue, at least in civil proceedings, by the operation of a doctrine of waiver. Criminal proceedings may be in a different position: for example in Shaw v The Queen (1952) 85 CLR 365 it was said at 381 (Dixon, McTiernan, Webb and Kitto JJ) that the failure of the accused’s counsel to object to inadmissible evidence did not make it admissible. At least in criminal proceedings there may be occasions on which a trial judge is obliged to question the admissibility of evidence although no objection is taken, in the interests of ensuring a fair trial: R v Slack (2003) A Crim R 314 at [37] (Sheller JA, Wood CJ at CL and Smart AJ agreeing); R v Lewis [2003] NSWCCA 180 at [68] (Buddin J, Santow JA agreeing). Further, while leave under r 4 must be obtained it is not uncommon for a ground of appeal to be entertained that the trial miscarried because inadmissible evidence was admitted notwithstanding that no objection was taken to it, for example R v Chai [2002] NSWCCA 512 at [41] (Mason P, Sperling and Bergin JJ).

24 The prior question is not one of use of inadmissible evidence which was not objected to, but of construction of s 281. It does not concern s 281 alone. The Evidence Act 1995 uses the words “is not admissible” in relation to hearsay evidence (s 59), opinion evidence (s 76) tendency evidence (s 97), coincidence evidence (s 98), credibility evidence (s 102) and visual identification evidence (s114), amongst other provisions. The words are to be contrasted with “is not to be adduced” in ss 118 and 119 and similar directory words in other provisions. Strong forms of words are found in s 137, “must refuse to admit evidence”, and s 138, “is not to be admitted”. In Selsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Spigelman CJ said at [149] that ordinarily “not admissible” in the Evidence Act means “not admissible over objection”.

25 On the other hand, s 190 of the Evidence Act (under the heading “Waiver of rules of evidence”) provides for the court to dispense by order with the application of many provisions of the Act if the parties consent, which at first sight is not consistent with the provisions being inapplicable if they are not invoked by a party objecting to evidence. In particular, by s 190(c) in criminal proceedings a defendant’s consent is not effective unless the defendant has been advised to consent by his lawyer or the court is satisfied that the defendant understands the consequences of giving the consent.

26 However, the Chief Justice’s construction of “is not admissible” in R v Reid has been adopted in this Court in R v Spathis and Patsalis [2001] NSWCCA 476 at [416]-[417] (Carruthers AJ, Heydon JA and Smart AJ agreeing) R v Lyberopoulos [2002] NSWCCA 280 at [41] (Hulme J, Mason P and Simpson J agreeing) and R v Kaddour [2005] NSWCCA 330 at [62] (the Court). The appellant submitted that R v Reid should be reconsidered in the light of the rationale for equivalents to s 281 explained, and the purposive construction given, in some of the judgments in Kelly v The Queen (2004) 218 CLR 216 and Nicholls and Coates v The Queen (2005) 219 CLR 196, but the High Court was not concerned with the present question. In the absence of proper argument to the contrary, the decisions should be followed. Accordingly, the ground of appeal fails in limine because, in the absence of objection, the statement was not inadmissible and was not wrongly admitted.

27 It is nonetheless appropriate to consider suspicion and reasonable excuse. The absence of objection to the statement is material to these matters, because it meant that there was no occasion for the Crown to address either of them by evidence.

28 Detective Inspector Sheehy (then Detective Sergeant) was the officer in charge of the investigation of the murders. He went to 6 Collins Street at about 1 am on 11 July 2001. He spoke to police already at the scene, and spoke to the appellant and at the appellant’s request called a friend to come and support him. He took the appellant to the Gladesville Police Station, where the appellant was placed in a victim room with relatives; they included his uncle, Joseph Claridades, and his aunt, Emily Luna. A little later he took the appellant to an interview room, where the appellant was accompanied by Joseph Claridades, and there took the statement from him.

29 The statement began that it accurately set out the evidence which the appellant would be prepared, if necessary, to give in court as a witness. It was in the form of a statement of a witness, not that of a cautioned suspect. It included, clearly enough prompted by enquiry from Detective Inspector Sheehy, that the appellant did not know of any person with ill feeling towards his family, or of any threats or violence towards any of the members of his family, save for a description of an incident of road rage the previous night when the appellant was driving and his parents were in the car; a passenger in another vehicle yelled out “Bloody Asians” and the other vehicle cut the appellant’s car off and then followed it and stopped behind it. Nothing in the evidence of Detective Inspector Sheehy or in the statement itself suggested that the appellant was suspected of the murders or that there were grounds for such suspicion. Detective Inspector Sheehy gave evidence, and was not asked anything in cross-examination in relation to suspicion of the appellant.

30 The appellant submitted that it should nevertheless be found in this Court that the appellant was a suspect, it seems meaning either was suspected or could reasonably have been suspected, having regard to other of the evidence at the trial plus evidence tendered on appeal. He said also that the fact that the appellant was a suspect was supported by the Crown Prosecutor’s cross-examination of him, in which it was put to the appellant in connection with the lies making up the first alibi that he believed from the beginning that he was a suspect (which the appellant denied).

31 The cross-examination can immediately be put to one side. The appellant’s belief, if held, turned on what was in his mind and what was known to him, not what was in an investigating official’s mind or what was known to an investigating official. Putting the belief to him does not support actual suspicion or reasonable grounds for suspicion by an investigating official.

32 The evidence at the trial on which the appellant relied was as follows.

33 Constable Luke Mulligan arrived at 6 Collins Street at about midnight on 10/11 July 2001. The appellant was in a distressed state and was crying and shaking. The appellant told him, amongst other things, that when the appellant came home he heard noises, one or two persons rushed past him and went out the front door, and he followed them but could not catch them. (A similar account was given in the statement of 11 July 2001). Constable Mulligan recorded this conversation in his notebook, and also recorded -

“* I accompanied the dog handler after setting up a perimeter.

* The son was very distressed & lying on the floor of the garage.

At times the story he was telling me changed.

* About 12.25-12.30 am I accompanied Dog 514 and Sen Const Cornell in an attempt to find a trail.

Shortly before doing this a [sic] noticed a vehicle parked under a carport separate to the enclosed garage the number plate contained the letter [sic] SEF

* I felt the bonnet of the vehicle & there was no heat on the bonnet. I cannot recall the exact colour of the vehicle or if it was wet due to the inclement weather.

* I accompanied the dog squad along Collins St & into Ryrie St travelling in a north & south direction.

It appeared that no scent was found either.”

34 Senior Constable Paul Cornale was the dog handler. He arrived at 6 Collins Street at about 12.15 am on 11 July 2001. He spoke to the appellant, who told him that he had heard the side gate close and had run after one or more persons. The appellant told him, in answer to his question, that the persons did not get into a vehicle. Senior Constable Cornale searched in the direction to which the appellant pointed, then “everywhere where someone could make an escape route”, but his dog did not pick up a scent. He gave evidence to the effect that persons leaving as described by the appellant would definitely have left a scent which the dog would have picked up. He also gave evidence that after he had finished the search he heard the appellant tell another police officer that the persons had got into a white four wheel drive, which he said would have been material to his searching because “it would have changed the whole perspective of my job at the scene”.

35 Senior Constable Cornale was not asked in cross-examination anything about suspicion falling on the appellant because his account of persons leaving was not borne out by finding a scent, and had changed in relation to the persons getting into a vehicle. Constable Mulligan was cross-examined to the effect that he had made up the conversation with the appellant as recorded in his notebook. The cross-examination included asking why he had not read to the appellant what he had recorded and asked him to initial it, and his response included his understanding that under police instructions that was to be done only if the officer believed that the person was a suspect. Implicitly, Constable Mulligan did not so believe, and the cross-examination did not extend to putting to him that he did.

36 The appellant submitted that the matters emphasised in the extract from the notebook of Constable Mulligan and the evidence of Senior Constable Cornale about lack of a scent and a changed account of the persons getting into a vehicle provided reasonable grounds for the appellant to have been suspected of having committed the murders. He submitted that it was not necessary that the police officer conducting the official questioning in the course of which the admissions were made, here Detective Inspector Sheehy, knew of the grounds.

37 The evidence tendered on appeal on which the appellant relied was contained in an affidavit of his solicitor sworn on 22 August 2007, the day the hearing in this Court commenced. The Crown had no prior notice of the tender of the evidence. From the affidavit in relation to extension of time, the appellant’s solicitor and senior counsel had been retained for a considerable time prior to the hearing in this Court, and the written submissions in support of the grounds of appeal were dated in March 2007. It is unacceptable that reliance on this further material emerged only when the hearing of the appeal was in progress.

38 The affidavit annexed three documents. It was said that each had been served on the defence as part of the police brief of evidence. The documents were -

(i) the transcript of a recorded forensic procedure at 4.27 am on 11 July 2001 of taking swabs of the appellant’s hands for gunshot residues;

(ii) a statement of Detective Inspector Sheehy dated 2 July 2002 which included a description of events at Gladesville Police Station on the morning of 11 July 2001; and

39 The appellant said that carrying out the forensic procedure supported his contention that he was a suspect. He also said that Detective Sergeant Sheehy’s statement showed that the forensic procedure was carried out during a break in the taking of the statement, and that the fact that the forensic procedure was recorded showed that the statement could have been recorded: I will return to this. He referred to one line in the notebook of Detective Sergeant Ashwood, who appears to have been at 6 Collins Street from about 1.50 am on 11 July 2001, reading “one ambo not going in – thought Sef may be POI”. It is not clear whether this was part of a report to Detective Sergeant Ashwood by another police officer or whether it was received directly from the ambulance officer, but it appears to have been the former; the appellant said that, “POI” meaning person of interest, this supported that the appellant was a suspect or at least could reasonably have been suspected of having committed the murders.

40 Detective Inspector Sheehy was not asked anything about the forensic procedure (or whether the statement could have been recorded), in chief or in cross-examination. The Crimes (Forensic Procedures) Act 2000 provides for carrying out forensic procedures on suspects, but also on volunteers (s 76); a form of caution is mandatory even in the case of a volunteer, and in the transcript the appellant was assured that he was not a suspect. Detective Sergeant Ashwood did not give evidence.

41 The Crown objected to the admission of the evidence tendered on appeal on the ground that objection had not been taken to the statement at the trial and an inquiry into its admissibility under s 281 should not be undertaken on appeal; it said that the evidence was not relevant. The appellant referred for admissibility of the materials to “the general cases relating to fresh evidence such as Gallagher and Mickelberg”, but his counsel was unable to assist the Court further by going to these cases or otherwise putting submissions in support of reception of the evidence on appeal. This also is unacceptable; the appellant should have been in a position to provide assistance.

42 Gallagher v The Queen (1986) 160 CLR 392 and Mickelberg v The Queen (1989) 167 CLR 259 were concerned with reception of fresh evidence on appeal. This was not fresh evidence – it had been served on the defence as part of the police brief. New evidence , meaning evidence not given at the trial although not fresh evidence, may in some circumstances be admitted on appeal if it demonstrates miscarriage of justice, but as Mason J said in Lawless v The Queen (1979) 142 CLR 659 at 675-6 -

“However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.

43 These observations were in relation to evidence going to conviction as distinct from evidence going to the admissibility of other evidence. The difficulty in showing a miscarriage of justice when, in a regularly conducted trial, material available to the accused going to the admissibility of evidence was not used to object to its admission, is certainly no less. There is unlikely to be a miscarriage of justice when counsel for the appellant had available, but did not use in the manner now put forward by the appellant, the documents annexed to the solicitor’s affidavit, and did not raise with Detective Inspector Sheehy the forensic procedure (or whether the statement could have been recorded).

44 As I have indicated, the course taken by counsel at the trial is readily understandable. There was not a miscarriage of justice occasioned by the absence of the evidence tendered on appeal, and it should be rejected.

45 In Papakosmas v The Queen (1999) 196 CLR 297 McHugh J said at [72] -

“There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant.”

46 It can not be said that the trial judge made an error of law in relation to the admissibility of the statement, because he was not asked to rule on its admissibility and the circumstances were far distant from requiring that he question its admissibility in the absence of an objection. In the manner the trial was conducted, the judge did not have reason to question whether in the early morning of 11 July 2001 the appellant was suspected of having committed the murders or whether he could reasonably have been suspected. The appellant must show that if objection had been taken to the statement, it would necessarily have been rejected. The actual suspicion or the reasonable grounds for suspicion must go beyond surmise or possibility, and must have a factual basis: R v Taouk (2005) 154 A Crim R 69 at [73], [161].

47 The evidence at the trial on which the appellant relied, even if supplemented by the evidence tendered on appeal, does not necessarily establish that the appellant was suspected of having committed the murders or could reasonably have been suspected, no matter who is regarded as an investigating official. If objection had been taken at the trial, the Crown would have had the opportunity to address those matters by evidence, but there was no issue at the trial and no occasion for it to do so; that is an added reason for declining to grant leave under r 4.

48 Since s 281 does not apply to the statement, there is no question of the prosecution establishing that there was a reasonable excuse as to why a tape recording could not be made. If the evidence tendered on appeal were received, it would be reasonably clear that a tape recording could have been made of the interview resulting in the statement, although that does not necessarily preclude a reasonable excuse as to why a tape recording could not be made. Again, the proper occasion for inquiry into admissibility of the statement was at the trial, when objection to the statement would have enabled the Crown to engage with whether there was a reasonable excuse.

49 Leave under r 4 should be refused.

Conviction appeal: Ground 2

50 The ground of appeal was also stated in rather narrative manner. Its substance was that a number of statements the appellant made to the police subsequently to 11 July 2001 were inadmissible and were wrongly admitted, because they should have been excluded pursuant to s 90 or alternatively s 137 of the Evidence Act 1995.

51 There was initial error in identification of the statements. The statements in the end were the recorded interviews between the appellant and the police on 16 July 2001 (part of Exhibit AAH), 1 August 2001 (Exhibit AAK) and 3 August 2001 (Exhibit AAM) in which he maintained the account of his movements given in the 11 July 2001 statement. It was submitted, in short, that they should have been excluded for unfairness (s 90) or unfair prejudice (s 137) because the police pretended to the appellant that he was not a suspect when he really was. No objection was taken to the statements at the trial.

52 The appellant’s counsel said, however, that if the Court were of the view that Ground 1 was not made out, then Ground 2 must necessarily fail. He explained that the intent of Ground 2 was to exclude from the evidence properly before the jury other sources of the evidence in the 11 July 2001 statement. He said that if evidence was before the jury through the 11 July 2001 statement, there was no basis for refusing to admit the later recorded interviews in the exercise of the discretion in s 90 or pursuant to s 137, and that there was “really no practical consequence in objecting to the material that is contained in the subsequent interviews” and that Ground 2 “becomes of no value to the appellant”.

53 These statements rather moved from legal consequences of failure on Ground 1 to practical consequences, but the appellant’s stance through his counsel should be respected. I have concluded that Ground 1 is not made out, and accordingly there is no occasion to consider Ground 2. It fails by concession.

Conviction appeal: Grounds 3 and 4

54 The substance of these also rather narrative grounds was -

(a) that evidence concerning the proposed purchase by the appellant of motor vehicles some weeks after the murders should have been excluded pursuant to s 135 or s 137 of the Evidence Act , alternatively the use made of the evidence by the Crown Prosecutor should not have been permitted; and

Evidence Act

55 Section 135 of the Evidence Act, applicable to both civil and criminal proceedings, gives a general discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. Section 137, applicable only to criminal proceedings, provides that the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. This is akin to a discretion so far as it calls for evaluative judgment, see for example R v Blick (2000) 111 A Crim R 326 at [19]; R v Cook [2004] NSWCCA 52 at [38]; and in a different context, Perpetual Trustee Company Ltd v Khosaba [2006] NSWCA 41 at [39]-[40].

56 The two grounds of appeal can conveniently be dealt with together. I will first describe the evidence and the use made of it.

57 Motive was important in the Crown case. Why would the appellant kill his parents and his sister? The Crown case included but was not confined to accelerated inheritance of the appellant’s parents’ wealth.

58 The significance of motive is reflected in the judge’s findings in his remarks on sentence under the heading “Motive”. The judge found that the appellant had been performing poorly in his university studies, to the disappointment of his parents who were ambitious for their children, and that his parents had discovered that he had falsified documents showing his university results. The parents had warned the appellant that if he did not do well in the next university semester his car, to which he was very attached, would be taken away from him. The judge continued -

“35 At the time of their deaths Mr and Mrs Gonzales owned property in Australia and the Philippines worth about one and a half million Australian dollars. The consequence of the wills made by Mr and Mrs Gonzales and their deaths and the death of their only other child Clodine would be that the prisoner would succeed to all of his parents’ property, unless, of course, he was disqualified from succeeding by reason of it being established that he had killed his parents and sister.

36 On Friday 13 July 2001, that is just three days after the murders, the prisoner attended the office of Mr Stafford, his father’s accountant, and made enquiries about a self-managed superannuation fund through which Mr Gonzales had conducted some of his financial affairs.

37 In October 2001 the prisoner went to the premises of a luxury car dealer in Chatswood and made enquiries about the purchase of a Lexus motor vehicle at a cost of over $170,000. He told the sales consultant that he would finance the purchase with funds coming from an inheritance. He also told the sales consultant that he had previously paid a deposit on a Porsche at about the same cost but had decided not to proceed with the purchase of the Porsche.

59 Mr Baros was retained by the executor of Teddy and Mary Gonzales to obtain probate. He gave evidence of obtaining probate, that the effect of their wills was that their estates passed to the appellant, and that the value of the estates was approximately $1.5 million. About $1.2 million was property located in Australia and the balance was property located in the Philippines.

60 Mr Stafford was the accountant for Teddy and Mary Gonzales and their companies. On 13 July 2001 the appellant came to his office with someone he referred to as his uncle. There was discussion of the business structure for the conduct by Teddy Gonzales of his practice and his placement of profits in his superannuation fund. The appellant asked about the balance in the superannuation fund, and was told that it was about $76,000 as at 30 June 2000 but would currently be more, probably twice that amount because of subsequent transfers. The appellant asked for and was given a copy of the 30 June 2000 statement showing the money on term deposit.

61 None of this evidence of Mr Baros and Mr Stafford was objected to, and neither of them was cross-examined.

62 The Crown led evidence from Mr Christopher Andrews, in October 2001 a sales consultant for Lexus Chatswood. On 14 October 2001 the appellant inquired at the showroom about a Lexus SC430, a two-door sports convertible with an on-road retail cost of $172,723. In conversation the appellant told Mr Andrews that he had placed a deposit on a Porsche Boxter S, which had a similar retail cost, but he was having second thoughts about its practicality. He was having difficulty getting the deposit on the Porsche back. There was discussion about where the appellant was going to get the money to purchase the Lexus, and the appellant spoke of “income from overseas, a beneficiary of a family, something along those lines, which he was due to inherit”. The money was due in a couple of months.

63 Arrangements were made for a test drive of a similar vehicle, as part of which the appellant gave Mr Andrews $1,000 in cash. A contract for the purchase of the Lexus was prepared and signed on 16 October 2001, and the appellant paid a further $4,000 to make up the deposit of $5,000 under the contract. Thereafter the appellant told Mr Andrews that he wanted to delay delivery until early 2002 as he was having trouble getting funds to pay for the vehicle, and there was other evidence that he asked an aunt in the Philippines to send him $190,000. In about February 2002 the appellant said that he wanted to get his deposit back. The deposit was refunded, and Mr Andrews did not hear again from the appellant.

64 No objection was taken to this evidence, and Mr Andrews was not cross-examined.

65 The appellant was cross-examined about his dealings with Mr Andrews, ultimately with the suggestion that he was “greedy for [his] parents’ wealth”, was not prepared to wait until he became legally entitled to their wealth, and “that is one of the reasons why you killed your parents”. He said that he and his father had test driven cars, referring to Ferraris, Maseratis and Lamborghinis, by putting a deposit or bond down on the basis that the money would be returned if they did not like the vehicle, and that in the case of the Lexus he “just did it so I could test drive a vehicle”.

66 In his address to the jury the Crown Prosecutor suggested that it was not a test drive, but a genuine attempt to purchase the vehicle; that the appellant had tried to get the money to pay for it from his aunt and had delayed delivery but had ultimately not got the money, and -

“The total value of their estate was something like one and a half million dollars. In our submissions to you one of his motivations for killing his parents was to get his hands on this one and a half million dollars and you might think that one of the reasons that he had for killing his sister was that he didn’t want to share the one and a half million dollars with her.”

67 No objection was taken to the cross-examination, or to the Crown Prosecutor’s address in this respect.

68 The appellant submitted that the evidence of Mr Baros was irrelevant because there was no evidence that the appellant was aware of his parents’ wealth, apart from what might be presumed from his knowledge of their lifestyle and apparent material assets. He accepted that so far as it was relevant it went to the Crown case on motive. He submitted that while the evidence of Mr Stafford was relied on by the Crown as going to motive, it was consistent with innocence; its probative value was limited and there was danger of unfairly prejudicial use. The appellant submitted that the evidence relating to his enquiries about a Porsche and the Lexus had limited probative value but the potential to be unfairly used against him, and that the use made of it by the Crown Prosecutor was unfairly prejudicial to him.

69 The evidence of Mr Baros was relevant; belief in wealth could be inferred, and the order of magnitude could be shown. From the evidence of Mr Stafford and Mr Andrews, it was open to the jury to find an interest in the parents’ wealth and its enjoyment which, together with other matters, could establish motive. I do not accept that the probative value of the evidence was limited. In De Gruchy v The Queen (2002) 211 CLR 85 at [28] Gaudron, McHugh and Hayne JJ said -

R v Ball

‘Evidence of motive necessarily goes to prove the fact of the homicide by the accused ... inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not’.”

70 Evidence is not unfairly prejudicial for the purposes of ss 135 and 137 merely because it makes more likely that the defendant will be convicted, and the prejudice to which the sections refer is prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way: Papakosmas v The Queen at [91] per McHugh J; R v BD (1997) 94 A Crim R 131 at 139. The appellant did not identify the risk of misuse by the jury in an unfair way, save so far as it was submitted that the evidence was used to portray him as a greedy and self-interested person who was not worthy of belief for that reason. It may be observed that this can not have been as it appeared to the appellant’s counsel at the trial, and the evidence was used for the different purpose of establishing motive.

71 There was no error on the part of the trial judge, since objection was not taken to the evidence or to the use made of it and there was no occasion for the judge to have intervened of his own motion. Had objection been taken, I do not think it can be concluded that the court would have refused to admit the evidence. On the contrary, in my opinion, a proper exercise of the discretion under s 135 and a proper application of s 137 would have meant that the evidence was admitted. I am not satisfied that the admission of the evidence caused a miscarriage of justice, and again leave under r 4 should be refused.

Conviction appeal: Ground 5

72 The ground was -

“Evidence given by Det Sgt Paul Auglys disclosing the fact that Ms [JK], a potential witness for the prosecution, who had at some time been in a relationship with the appellant, had told Det Auglys that ‘if she had to give evidence she would take her own life’ (T 1098.55) and that ‘she was going to kill herself is [sic] she was made to come to court’ (T 1099.20) should not have been admitted, particularly where it was apparent that the defence had agreed that no suggestion would be made that an inference against the Crown should be drawn from the failure to call [JK] as a witness.”

73 The appellant’s written submissions said that the “terms of this ground of appeal essentially speak for themselves”. It was not greatly elaborated, save that it was said that “[t]he impact of this evidence may, however, have been profoundly against the interests of the appellant and may have effected [sic] the deliberations of the jury”. It was acknowledged that what was described as putting unfairly prejudicial material before the jury was not a matter which by itself made the trial unfair. It was said that it should be taken with the other “incidents of unfairness”, I think meaning Grounds 3 and 4, for their cumulative effect.

74 JK was in a relationship with the appellant for a short period in May-June 2001, and they had some communications thereafter. The appellant had told the police and others that the termination of the relationship caused suicidal thoughts, which was used to explain his internet searches about poisonous plants and seeds and possession of poison extracted from seeds (see in relation to Ground 7) and going to a brothel on 10 July 2001 according to the second alibi (see further the evidence of FC in relation to Ground 9). JK’s statement and the transcript of her evidence at the committal proceedings were admitted without objection. She said in them that the appellant was upset when she terminated the relationship, but her account of their subsequent communications was not consistent with him being brought to suicidal thoughts.

75 The statement and transcript were tendered when Detective Sergeant Auglys gave evidence, the course of which was relevantly as follows.

76 Detective Sergeant Auglys said that JK told him that she did not want to come to court and give evidence, that her family would be deeply offended by her coming to court “and if she had to give evidence she would take her own life”. He was later requested by prosecution authorities to serve a subpoena on JK. When he contacted her, she was upset. A meeting was arranged, at which JK started to cry and told Detective Sergeant Auglys “that she was going to kill herself if she was made to come to court”. She explained distress caused to her grandfather when he recognised her photo in the paper, even though it was pixilated, after the committal hearing, and that he almost had a heart attack because of it. She said that “she couldn’t live with herself if anything happened to her family”. She gave him a letter.

77 The Crown Prosecutor tendered the letter. Counsel for the appellant objected to it, saying that it would not be submitted that the Crown should have called JK. While it is unclear, it appears that the defence had made known that it would not object to the tender of JK’s statement and her evidence at the committal hearing. Counsel said in effect that no objection would be taken to them. They were tendered and admitted.

78 It was open to the Crown to explain by evidence why the jury had the statement and transcript rather than JK herself. No objection was taken to the evidence of Detective Sergeant Auglys in this respect; the objection only came when the letter was tendered. The explanation for JK’s absence did not reflect on the appellant, and it is fanciful to suggest that the evidence of Detective Sergeant Auglys was unfairly prejudicial to him. There is nothing in this ground of appeal, alone or as some kind of makeweight.

79 Leave under r 4 is required, and should be refused.

Conviction appeal: Ground 6

80 The ground was -

“The trial proceedings miscarried by reason of the inflammatory and intemperate language used by the Crown Prosecutor in his cross-examination of the appellant and in his closing address to the jury, by using the descriptions ‘pathetic’ and ‘absolutely pathetic’ as expressions of the prosecutor’s own opinion of the quality of the evidence given by the appellant and through deliberately conveying that opinion to the jury.”

81 The ground rested on the uses of “pathetic” (three times) and “absolutely pathetic” (once). The appellant relied on R v Rugari (2001) 122 A Crim R 1, R v Liristis (2004) 146 A Crim R 547 (which he said was on all fours) and Livermore v R [2006] NSWCCA 334. Recent consideration of a Crown Prosecutor’s conduct can be found in Libke v The Queen (2007) 81 ALJR 1309.

82 The appellant’s examination in chief occupied less than two pages of the transcript. He said that he did not murder his parents and sister, that he left Teddy Gonzales’ offices prior to 4 pm on 10 July 2001 and parked in the carport at 6 Collins Street and went by taxi to the brothel, returning by taxi to pick up his car and go to the city with his friend. He returned home sometime after 11.30 pm to find that his family had been killed.

83 The cross-examination extended over three days, and occupied over 160 pages of transcript.

84 The Crown Prosecutor used the description “pathetic” once in the cross-examination, in the penultimate question. The question was concerned with the emergency telephone call made to the Ambulance Service in which the appellant told the operator that someone had shot his parents and that there was a lot of blood; in fact the victims had not been shot. The question should be put in context.

85 In his statement to the police of 3 August 2001 the appellant had said that when returning home late on 10 July 2001 he slowed down in Wicks Road to see if there was anything strange. The Crown Prosecutor drew the appellant’s attention to this, and over some two pages of the transcript pressed the appellant on whether he was expecting anything strange and put to him that he had expected that while he was away someone would try and ring his family, fail to get through and go to the house and discover the bodies.

86 The cross-examination continued -

pathetic

87 In his address to the jury the Crown Prosecutor used the description “pathetic” once and the description “pathetic, absolutely pathetic” once. Again, it is necessary to put the uses in context. The use of “pathetic” was in relation to an e-mail dated 3 August 2001, and the use of “pathetic, absolutely pathetic” was in relation to an alleged attempt to gain entry to the appellant’s apartment in May 2002.

88 On 20 August 2001 the appellant provided to the police an e-mail dated 3 August 2001. It became Exhibit AAN. It was partly in Tagalog and partly in English, and was to the effect that a Mr C (who was a wealthy Philippines businessman), had something to do with the murders because Teddy Gonzales “refused an illegal deal” and that the appellant had been an intended victim and was still at risk. The Crown case included that the appellant had sent the e-mail to himself. There was evidence that an early version of the e-mail was on the appellant’s computer, together with programmes designed to disguise and create false e-mails. There was evidence from the “owner” of the e-mail address from which the e-mail had purportedly come that he had had nothing to do with it, and from Mr C that he did not know Teddy Gonzales. It was open to the jury to regard the e-mail as a false attempt to divert attention from the appellant, and to take this into account in coming to their satisfaction that he had committed the murders.

89 The appellant was cross-examined in relation to Exhibit AAN. He admitted that the e-mail “was my creation”. The cross-examination continued -

90 In re-examination the appellant said that he had been told by family and friends of death threats not long before the murders, that some time after the murders he was told as well that there were media reports in the Philippines of contract killers, and -

“I put together this e-mail because I was afraid that if it – the information came from me officially, that I would be in danger as well. I didn’t see any harm in it because the information that I put in here were based on facts that I heard. I didn’t make up what was in this e-mail, all that I attempted to make was that it was from someone anonymous.”

91 In his address to the jury the Crown Prosecutor suggested that the appellant had no choice but to admit that he had created the e-mail himself, that he “had to admit that it was some false evidence that he had created”, and -

pathetic

92 By May 2002 the appellant had been told that he was regarded as a suspect. On 30 May 2002 the appellant asked Detective Inspector Sheehy to come to his apartment. At the apartment the appellant said that he had received two threatening e-mails, one of which had self-destructed when he tried to save it. The other e-mail, dated 22 May 2002, told the appellant to “confess” but said, amongst other things, “you will probably be acquitted” and “you cause trouble for us we will kill you. You cannot bring back your family your father deserved to die”. From other evidence in the Crown case, it was open to the jury to conclude that the appellant had sent the e-mail to himself. The appellant also told the police that he had heard a noise which led him to believe that someone had attempted to gain entry to his apartment at about 3 am earlier that day.

93 Detective Sergeant Leggat attended later on 30 May 2002 to investigate the attempt to gain entry, and was given a more full account of it which included being told of three gouge marks on the front door. On investigation, no occupant of surrounding apartments had seen or heard anything unusual, and there were no results from fingerprint examination of the front door. There was evidence at the trial from a forensic officer, with photographs and explanation, that the marks on the door were superficial scratches inconsistent with jemmy marks where inwards pressure is applied to the door and door jamb in an effort to defeat the locks or with an object being inserted between the door and the door jamb in an effort to manipulate the latches.

94 In his address to the jury the Crown Prosecutor suggested that, for reasons he put forward, the e-mail was a fake. He continued -

Pathetic, absolutely pathetic

95 In Whitehorn v The Queen (1983) 152 CLR 657 at 663-4 Deane J stated the principles governing the conduct of a Crown Prosecutor -

“Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered.”

96 Departure from the standards of fairness may occur by intemperate conduct by the Crown Prosecutor. In R v McCullough (1982) 6 A Crim R 274, in a passage taken up in R v Liristis at [94], it was said at 285 -

“Counsel for the Crown is obliged to put the Crown case to the jury and, when appropriate, he is entitled to firmly and vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack that advanced on behalf of the accused. But he must always do so temperately and with restraint, bearing constantly in mind that his primary function is to aid in the attainment of justice, not the securing of convictions.”

97 It is, of course, a question of balance in the particular circumstances. In R v McCullough the Court continued, through a citation from R v Roulston (1976) 2 NZLR 644 at 654, that the prosecutor should not assume so emasculated a role that the prosecution’s case is not adequately presented, and that the “feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another”.

98 In R v Rugari Carruthers AJ, with whom Spigelman CJ and Sperling J agreed, emphasised that a criminal trial is of an adversary nature and said -

Moss v Brown

"In any discussion of fairness, it is imperative to consider the position of all parties. It is sometimes forgotten that the Crown has rights and, as it has a heavy responsibility in respect of the invoking and enforcement of the criminal law, which includes seeing that the public revenue is not imposed upon, it is entitled to maintain those rights even if they may bear heavily upon some accused".

99 In Libke v The Queen Hayne J, with whose reasons Gleeson CJ and Heydon J agreed, referred at [71] to the central role of prosecuting counsel to ensure that the Crown case is presented with fairness to the accused, but observed at [72] that the prosecution case is to be presented in the context of an adversarial process in which each side is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; his Honour said that there were “boundaries to that process”, with choices to be made subject to the rules of evidence, fairness and admissibility. His Honour said at [74] – [77] that, in the complaint in that case of unfairness in undermining the accused’s credibility, it was an essential part of the prosecutor’s function to test the credibility of the account he gave and that the question was whether that was done unfairly, and that where no objection had been taken at trial it was important to examine carefully what happened at the trial to see in what respect there was said to be an unfairness. The additional remarks Gleeson CJ at [2] included that the argument that the conduct of the prosecutor during his cross-examination of the accused resulted in an unfair trial, and a miscarriage of justice, involved a question of degree.

142 When in January 2002 the appellant abandoned the first alibi he told the police that the driver of the taxi who took him from North Ryde to Chatswood Railway Station on 10 July 2001 was Mr A, and that he had tracked Mr A down and Mr A confirmed taking him. Mr A gave evidence that on 12 January 2002 the appellant engaged his taxi and asked him to give a statement that the appellant had been in his taxi on 10 July 2001, and that in return for money Mr A did so but the statement was false. The taxi activity log sheet for Mr A’s taxi for 10 July 2001 was in evidence, and Mr A said that according to it he did not pick the appellant up from North Ryde and take him to Chatswood Railway Station between 5 pm and 6 pm on 10 July 2001 or at a slightly earlier time.

143 The cross-examination of the appellant last set out continued -

144 The sequence of cross-examination in relation to the evidence given by E, Mr Andrews, A and Mr A concluded with the evidence earlier set out -

145 In R v Praturlon (CCA, 29 November 1985, unreported) the accused was charged with acts of indecency towards three young girls, Kelly, Michelle and Megan. It was alleged that he had masturbated in the view of the three girls and a fourth girl, Joanne. The three girls gave evidence. The accused gave evidence described as denial of “the entirety of the narrative presented by the evidence of the three girls”, and called Joanne. A number of grounds of appeal were rejected, but Street CJ (with whom O’Brien CJ Crim D and Slattery CJ at CL agreed) said -

Alister & Others v The Queen

146 The Chief Justice set out a lengthy extract from the cross examination, in which it was put to Joanne that her evidence was contrary to the evidence on oath of the three girls. A number of the questions were in the form, after stating the girls’ evidence, “do you have anything to say about that?” His Honour continued -

147 The objection to such a cross-examination lies in the witness being asked “to express an opinion as to whether other witnesses are telling the truth”, that is, to impugn their truthfulness. Whether what other witnesses have said is correct is a different matter. The distinction was made clear in R v Leak (1969) SASR 172, where the Court (Bray CJ, Hogarth and Walters JJ) said at 173-4 -

“In our view a witness ought not to be asked whether another witness is telling lies or has invented something. Any witness, of course, can be asked if what another witness has said is true. He can be asked if he knows of any reason why the other witness should be hostile to him or should tell a false story about him. But if he says that what the other witness has said is not true, he should not be asked to enter into that witness’s mind and say whether he thinks the inaccuracy is due to invention, malice, mistake or any other cause. To do so is to ask him for opinion evidence and in our view the normal objections to that type of evidence apply. It is for the jury to decide which witness is telling the truth and how far what they think to be an inaccuracy on the part of any witness is deliberate or otherwise and what effect such inaccuracy has on the rest of the witness’s testimony. No attempt should be made by the cross-examiner to drive any witness, least of all the accused, into saying that any other witness least of all a detective, is a liar.”

148 Whether the witness could be asked if he knows of any reason why the other witness should be hostile to him or tell a false story about him may no longer be correct, see Palmer v The Queen (1998) 183 CLR 1, but does not presently arise.

149 In R v Booty (CCA, 19 December 1994, unreported) Grove J, with whom Abadee and Simpson JJ agreed, said -

R v Leak

R v Praturlon

North Australian Territory Co v Goldsborough Mort and Co

150 In R v Rich (1998) 102 A Crim R 165 it was said at 169 that a witness should not be “invited to express an opinion about the truthfulness of another”, referring to R v Leak and R v Praturlon, with risk of reversal of the onus of proof. (As to that risk, see also R v Gapper [2007] SASC 119 at [50]). In R v Gilbert (CCA, 10 December 1998, unreported) Grove J, with whom Levine and Dowd JJ agreed, said that the “essence” of the vice in such a cross-examination was as summarised in R v Leak, namely that the witness was invited “to enter the complainant’s mind and say whether the false assertion is due to invention, malice, mistake or any other cause”. In R v Buckley (2004) 149 A Crim R 122 at [9] the Court of Appeal in Victoria expressed the prohibition that a witness can not be asked in cross-examination “whether another witness is telling lies or has invented something”.

151 I do not think that the cross-examination of which the appellant complained offended these principles. The appellant had not in his evidence in chief addressed the evidence tendered in the Crown case in any detail, and it was appropriate for the Crown Prosecutor to confront him with what had been said in evidence by or through Crown witnesses. Asking the appellant whether the witness was wrong was a permissible way of doing so, and I do not think the cross-examination trespassed into asking the appellant to express an opinion on whether the witnesses were lying or had invented their evidence or otherwise why their evidence was incorrect.

152 I should add that, if the line from permissible to impermissible cross-examination had been crossed, I consider that (like Joanne in R v Praturlon) the appellant was not prejudiced in his cross-examination and there was not unfairness bringing a miscarriage of justice.

153 This ground of appeal fails.

The proviso

154 The Crown submitted that if any of the grounds of appeal were upheld the proviso in s 6(1) of the Criminal Appeal Act applied. It said that the strength of the Crown case was such that no substantial miscarriage of justice had occurred. The appellant contested the application of the proviso.

155 The Crown case was certainly strong, but it is difficult to assume success of a ground or grounds of appeal and consider the proviso on an assumption or assumptions. There is no occasion to do so.

The application for leave to appeal against sentence - preliminary

156 Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 provides -

“61(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met by the imposition of that sentence.”

157 By s 61(3), nothing in s 61(1) affects s 21(1) by which an offender liable to imprisonment for life may nevertheless be sentenced to imprisonment for a specified term.

158 The judge said in his remarks on sentence, under the heading “Decision” -

“104 I have already made findings about the objective facts of the offences. These objective facts include the following:-

105 The prisoner committed three murders, killing his parents and his sister by assaulting them at close quarters. He had an intention to kill each of the victims. He killed the victims by stabbing them with a knife or, in the case of Clodine, striking her with a bat and strangling her, as well as stabbing her with a knife. There was a high degree of violence in all of the murders.

106 The killings were premeditated, the prisoner having had it in mind to kill his parents from the time he began researching poisons on the Internet some months before 10 July 2001. The prisoner gave poison to his mother about ten days before 10 July 2001, intending to kill her.

107 Although all three victims were killed in the course of one criminal episode, there were distinct intervals of time of an hour or more between the killing of Clodine and the killing of Mrs Gonzales and then between the killing of Mrs Gonzales and the killing of Mr Gonzales. The offences were not committed in one, uninterrupted, outburst of criminal conduct.

108 The motives for the killings were to prevent his parents withdrawing privileges they had extended to him and to obtain his parent’s wealth, without delay and as their sole heir.

109 The prisoner was not at the time of committing the offences suffering from any mental illness or mental disorder or any mental state which would mitigate the criminality of his conduct.

110 I consider that the murders show features of very great heinousness and that there are no facts mitigating the objective seriousness of the murders and hence the murders fall within the worst category of cases of murder at common law.

111 I am also satisfied that the level of culpability in the commission of the offences is so extreme that the case falls within s 61(1) of the Crimes (Sentencing Procedure) Act .

112 It is, however, necessary for me to determine whether there are subjective features which at common law would mitigate the penalties to be imposed or which would result in my exercising in favour of the prisoner the discretion, which is preserved by s 61(3), to impose lesser sentences than life sentences.

113 I have already made findings about the subjective circumstances of the prisoner. In particular, I have noted that the prisoner did not plead guilty, that he did not provide any assistance to the authorities and, on the contrary, persistently endeavoured to mislead them, and that he has not shown any contrition.

114 I do not make any finding that the prisoner has no prospects of rehabilitation. However, I consider that there is a risk of the prisoner re-offending and that there is a risk of future dangerousness. I base this conclusion on the following matters among others:- The objective facts of the offences; that the prisoner pleaded not guilty; that more than three years after having committed the offences the prisoner continues to maintain his innocence and has not demonstrated any insight into the enormity of the offences he committed or any acceptance of responsibility for the offences; and the high degree of unscrupulousness and duplicity shown by the prisoner in the raising of the false alibis and the laying of the false trails.

115 I take into account the prisoner’s young age at the time of committing the offences. He was twenty years old, approaching his twenty-first birthday, and he was in his third year as a university student. I also take into account the other subjective matters urged by his counsel. However, the conclusion I have reached is that the objective facts of the offences and the subjective circumstances of the prisoner are such that I should impose sentences of life imprisonment for the murders.

159 It is convenient to deal first with Grounds 2 and 3, in which particular errors were asserted.

Application for leave to appeal against sentence – Ground 2

160 The ground was -

“In determining sentence for the applicant, the learned judge failed to have sufficient regard to all of the relevant features of the applicant’s case for the purpose of sentence and in particular the age of the applicant and his prospects of rehabilitation in the future.”

161 The applicant’s submissions were confined to his age and his prospects of rehabilitation. The applicant was aged 19 at the time of the murders, and 24 at the time he was sentenced. He submitted that only in extraordinary circumstances was life imprisonment justified, and that it was common experience that with age came change; he said that fitness for release was a matter best left to the Parole Board. He referred to the dissenting judgment of Allen J in R v Crump (CCA, 30 May 1993, unreported) and the remarks on sentence of Adams J in R v Robinson [2000] NSWSC 972 at [42] in which Allen J’s judgment was cited. The applicant also submitted that the judge had “effectively dismissed the issue of rehabilitation in the sentencing process” by finding risks of re-offending and future dangerousness. The submissions included that the judge did not sufficiently take the applicant’s age into account when determining the level of culpability for the purposes of s 61(1).

162 The remarks in R v Robinson were directed to when it might be safe to release the offender, and do not displace other sentencing considerations. As the Crown pointed out, young offenders received life sentences in R v Fernando and Fernando (1997) A Crim R 533 (26 and 27 years), R v Glen [1999] NSWSC 1018 (19 years, a re-determination of a life sentence) and R v Valera [2002] NSWCCA 50 (19 years). In R v Leonard (CCA, 7 December 1998, unreported) McInerney J, with whom James and Bruce JJ agreed, said that -

“ … to sentence the applicant to imprisonment for the term of his natural life is a terrible punishment to impose on a young man aged twenty-four. However, as the Crown has pointed out, the legislature has seen fit to pass such legislation and it expects the Court to carry out the intention of the legislature should the situation call for such a sentence. We should not shirk from our responsibility in doing so, no matter how distasteful it may be.”

163 Nor does some prospect of rehabilitation mean that a life sentence should not be imposed. In Knight v R (2006) 164 A Crim R 126 McClellan CJ at CL, with whom Latham J agreed, said -

· the maximum penalty for an offence in the case of murder, life imprisonment, is intended for cases falling within the worst category of case for which that penalty is prescribed: Ibbs v R (1987) 163 CLR 447 at 451–452.

· it is not possible to prescribe a list of cases falling within the worst category — ingenuity can always conjure up a case of greater heinousness: Veen v R (No 2) (1988) 164 CLR 465 at 478; R v Petroff (unreported, 12 November 1991 — Hunt CJ at CL).

· a life sentence is not reserved only for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or for cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by a sentence of life imprisonment; R v Kalazich (1997) 94 A Crim R 41 at (50–1); R v Baker (unreported, CCA 20 September 1995); R v Garforth (unreported CCA 23 May 1994).

· in many cases a two stage approach to the consideration of whether the maximum penalty should be imposed is appropriate. Firstly, consideration is given to whether the objective gravity of the offence brings it within the worst class of case and then consideration is given to whether the subjective circumstances of the offender require a lesser sentence: R v Bell (1985) 2 NSWLR 466; R v Valera [2002] NSWCCA 50.

· it is the combined effect of the four indicia in s 61(1) which is critical: R v Merritt (2004) 59 NSWLR 557.

· the absence of any one or more of the indicia of retribution, punishment, community protection or deterrence may make it more difficult for a sentencing judge to reach the conclusion that a life sentence is required although will not be determinative: Merritt at 559.

…

[30] The applicant submitted that “it was not open to his Honour to find that the applicant was so dangerous that she could never be released.” I do not accept this submission. It is now settled that the sentencing judge does not have to be satisfied of the risk of re-offending beyond reasonable doubt: R v SLD (2003) 58 NSWLR 589. To my mind there was more than sufficient evidence to justify his Honour’s conclusion in this case. As his Honour found, the evidence reveals a pattern of violent and vengeful behaviour visited upon her previous partners and the deceased. This behaviour extended to engaging her nephew to assault the deceased and steal his motor vehicle. Dr Delaforce noted the applicant was herself fearful “that she would repeat her behaviour if released from prison” and concluded that she had a “continued high risk of violence to self and others, especially when relationships with males end, or are thought to be ending.” Dr Delaforce is of the opinion that these personality traits would not change significantly in the future. Dr Milton concurred with Dr Delaforce.

R v Garforth

R v Baker

‘An alternative way of putting such an argument would be to say that where a prisoner had some prospects of rehabilitation, his crimes could never be regarded as falling into the worst category of case. I would reject such an argument.’”

164 The judge took into account the applicant’s young age at the time of committing the offences, stating the age. The applicant submitted that his Honour dealt with the applicant’s age “by … dismissing it as a factor of any real significance in deciding sentence”, and that it was of significance both as a subjective feature and as going to the culpability of the offending for the purposes of s 61(1) of the Crimes (Sentencing Procedure) Act.

165 I do not accept that the judge dismissed the applicant’s age as a factor of no real significance. He took it into account, and referred to it in connection with his conclusion as to both “the objective facts of the offences” and “the subjective circumstances of the prisoner”, concluding that they were “such that I should impose sentences of life imprisonment for the murders”. Nor was there error in the judge finding a risk of re-offending and future dangerousness, for which there was sound support in the evidence, or in imposing sentences of life imprisonment: notwithstanding that he declined to find that there were no prospects of rehabilitation. In my opinion, no error has been shown in the regard paid to the applicant’s age and his prospects of rehabilitation.

Application for leave to appeal against sentence: Ground 3

166 The ground was -

“In determining the only way the community interest could be met was by imposing a life sentence in each case, the learned judge failed to consider the role of the authority charged with the responsibility of determining whether in future the applicant should be released to parole”.

167 The ground was related to Ground 2. The applicant relied on the judgment of Adams J in Knight v R. The offender had been sentenced to life imprisonment for murder. In his discussion of s 61(1) Adams J said -

“55 It is obvious that such a punishment can only be justified for an offence that falls into the worst class of case. Furthermore, the circumstances must be such that the only way by which the relevant community interest can be met is by imposing a life sentence. Since s61(1) is part of a legislative scheme including, self-evidently, s54, this last sentence should be extended to read: the circumstances must be such that the only way by which the relevant community interest can be met is by imposing a life sentence without the possibility of being considered for release on parole . To ignore this aspect of the sentence would be to ignore its overwhelmingly most significant attribute.

…

168 These observations of Adams J were not taken up by the other members of the Court. His Honour had referred in R v Robinson to the role of the Parole Board in assessing change with age, but in the appeal against the sentence imposed this Court said (R v Robinson [2002] NSWCCA 359) -

“39 In relation to the plea of guilty, and generally, his Honour had regarded the applicant as presenting a serious danger from which society should be protected, and he specifically stated that the requirements of the protection of the public (together with the gravity of the crime) called for a lengthy sentence. Yet he said that he could not confidently state that it will never be safe to release the applicant, and referred to the experience of reform of young offenders and to the part played by the Parole Board. The sentencing purpose of protection of the public is, of course, served by a sentence marking retribution, providing deterrence and assisting rehabilitation as well as by incarceration to prevent repetition, but his Honour seems to have focussed on incarceration to prevent repetition. The need for protection of society, in that sense, informed the sentence to be imposed, and that the Parole Board could assess any change in the applicant in 35 years time did not assist in determining whether the 45 years was appropriate because of the need for protection of society. What was the finding as to prospects of rehabilitation?”

169 It is not necessary to resolve this matter, and the submissions did not fully explore it. Assuming that the community interest in community protection, one of the matters referred to in s 61(1), can call for consideration of the role of the Parole Board, the role of the Parole Board does not mean the community interest is met by less than the imposition of a life sentence. The community interest in retribution, punishment and deterrence, and in community protection even taking account of the Parole Board, may be met only by the imposition of a life sentence. The judge would have been well aware that, if life sentences were imposed, there was no question of a parole period (see in particular R v Harris (2000) 50 NSWLR 409), and nonetheless came to the life sentences because of the objective seriousness of the offences and with regard to the applicant’s subjective circumstances. His Honour found of a risk of re-offending and future dangerousness, the basis for which could not be controverted. While his Honour did not specifically refer to the possibility of being considered for release on parole, there is no reason to conclude that he failed to pay regard to it.

Application for leave to appeal against sentence: ground 1

170 The ground was -

Criminal Appeal Act

171 The applicant correctly drew attention to the nature of the appeal on this ground, as described by Wood CJ at CL (with whom Tobias JA and Hidden J agreed) in R v Merritt (2004) 59 NSWLR 557 -

“60 The position of this Court, in considering an appeal from such a sentence, is limited by the fact that it is a court of error: Regina v Vachalec [1981] 1 NSWLR 351. It is not sufficient for it to find that some other sentence might possibly have been imposed, or that members of the Court might have themselves imposed a different sentence: Skinner v The Queen (1913) 16 CLR 336 and Regina v O'Donoghue (1988) 34 A Crim R 397. Rather, it must be satisfied that the sentence was wrong, and that some other sentence was warranted and should have been imposed: s 6(3) Criminal Appeal Act , and see Regina v Cocking [1999] NSWCCA 311.

…

Regina v Visconti

Regina v Morgan

Regina v Salameh

172 The applicant submitted that the sentences were out of line with the commonly accepted pattern for sentencing in murder cases in two main respects. The first was in relation to sentences for murder of family members. The second was in relation to murder by an offender of approximately the applicant’s age. (Again, the ground was related to Ground 2.) It was submitted that these respects should be seen not in isolation but in combination.

173 The applicant referred to a number of cases involving family or domestic murders, submitting that in most cases a determinate sentence was imposed even where there were multiple murders or significant planning and violence. With reference to a table, he said that out of seventy offenders sentenced for family murders only four were sentenced to imprisonment for life, and that in those cases the circumstances of the offending properly took them outside the pattern. He further submitted that it was rare for a sentence other than a determinate sentence to be imposed on an offender of the applicant’s age, and that that was unsurprising when a young offender could spend more than 50 years in custody with no hope of release (other than by executive exercise of the prerogative of mercy) and without incentive to rehabilitate. Life imprisonment was a much harsher punishment for a young offender than for an older offender, and the punishment was “dependent upon the pure chance of the offender’s age” (R v Denyer (1995) 1 VR 186 at 193). Again from a table, the applicant submitted that of fifty-seven offenders aged between 18 and 20 sentenced for murder only two received life sentences, one being the applicant and the circumstances of the other’s offending being “unique”.

174 The applicant submitted that determinate sentences should have been imposed. While recognising the limited utility of direct comparisons, he submitted that R v De Gruchy (2000) 110 A Crim R 271 showed that the sentences imposed on him were manifestly excessive. In that case the offender murdered his mother, sister and brother. The murders were planned, significant violence was used, and the offender sought to avoid detection. The offender was aged 18. He was sentenced to imprisonment for a non-parole period of 21 years and an additional term of 7 years.

175 I do not accept that a category of family or domestic murders should be devised (see also R v Whitmore [1999] NSWCCA 75 at [16]). The presently relevant categorisation is as a worst case or a case falling within s 61(1) of the Crimes (Sentencing Procedure) Act. As has been seen, life sentences for murder have been imposed on young offenders, and what matters is the application of s 61(1) on the facts of the particular case. The same approach is to be taken as in determining whether an offence falls within a worst case category, as stated by Hislop J (Spigelman CJ and Sully J agreeing) in Adanguidi v R [2006] NSWCCA 404 -

“34 …

R v Merritt

R v Mungomery

‘Prior sentences are in no way precedents that need to be distinguished. They may be relevant as a guide and issues of consistency are of significance. Nevertheless, the broad judgment required for the determination of an appropriate sentence turns on the facts of a particular case and the facts of other cases are virtually never so similar as to require detailed exposition.’”

176 In my opinion, it was well open to the judge to regard the murders as within the worst category of murders at common law and, for the purposes of s 61(1), at a level of culpability so extreme that the community interests there identified could only be met by the imposition of the life sentences.

Orders

177 I propose the orders -

1. Extend the time for filing the notice of appeal and application for leave to appeal up to and including 21 May 2007.

2. Dismiss the appeal against conviction.

178 HOWIE J: I agree with Giles JA.

179 FULLERTON J: I agree with Giles JA.

**********

27/11/2007 - typo - Paragraph(s) 89

27/11/2007 - - Paragraph(s)

28/11/2007 - non publication order - names removed - Paragraph(s) 118, 135,139,140, 141, 142, 143, 144

Citations

Gonzales v R [2007] NSWCCA 321

Most Recent Citation

Cases Citing This Decision

38

Patel v The Queen [2012] HCA 29

Aytugrul v The Queen [2012] HCA 15

R v P, TJ [2019] SASCFC 114

Cases Cited

58

Statutory Material Cited

0

Edwards v R [2009] NSWCCA 199

R v Lovett [No 3] [2013] WASC 102

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CITATION:	Gonzales v Regina [2007] NSWCCA 321 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22 and 23 August 2007
JUDGMENT DATE:	27 November 2007
JUDGMENT OF:	Giles JA at 1; Howie J at 178; Fullerton J at 179
DECISION:	(1) Extend the time for filing the notice of appeal and application for leave to appeal up to and including 21 May 2007; (2) Dismiss the appeal against conviction; (3) Grant leave to appeal against sentence but dismiss the appeal.
CATCHWORDS:	EVIDENCE - admissions by accused - giving false alibi - not recorded - whether made inadmissible by s 281 Criminal Procedure Act - whether inadmissible in absence of objection at trial - whether evidence available at trial admissible on appeal to establish inadmissability - whether accused a suspect when admissions made - relevance of some evidence. CRIMINAL LAW - conduct of Crown Prosecutor - whether departure from standards of fairness in cross-examination and address to the jury - whether error in putting in cross-examination that accused said Crown witnesses were wrong. SENTENCING - life sentence mandatory if culpability so extreme that community interest can only be met by a life sentence - regard to youth and possibility of rehabilitation - regard to role of Parole Board - whether sentences out of line with the pattern of sentences.
CASES CITED:	Adanguidi v R [2006] NSWCCA 404; De Gruchy v The Queen (2002) 211 CLR 85; Gallagher v The Queen (1986) 160 CLR 392; Kelly v The Queen (2004) 218 CLR 216; Knight v R (2006) 164 A Crim R 126; Lawless v The Queen (1979) 142 CLR 659; Libke v The Queen (2007) 81 ALJR 1309; Livermore v R [2006] NSWCCA 334; Mickelberg v The Queen (1989) 167 CLR 259; Palmer v The Queen (1998) 183 CLR 1; Papakosmas v The Queen (1999) 196 CLR 297; Perpetual Trustee Company Ltd v Khosaba [2006] NSWCA 41; R v Blick (2000) 111 A Crim R 326; R v Booty (CCA, 19 December 1994, unreported); R v Buckley (2004) 149 A Crim R 122; R v Chai [2002] NSWCCA 512; R v Cook [2004] NSWCCA 52; R v Crump (CCA, 30 May 1993, unreported); R v De Gruchy (2000) 110 A Crim R 271; R v Denyer (1995) 1 VR 186; R v Fernando and Fernando (1997) A Crim R 533; R v Gapper[2007] SASC 119; R v GH (2000) 105 FCR 419; R v Gilbert (CCA, 10 December 1998, unreported); R v Glen [1999] NSWSC 1018; R v Harris (2000) 50 NSWLR 409; R v Horton (1998) 45 NSWLR 426; R v Kaddour [2005] NSWCCA 330; R v Lawrence (1980) 1 NSWLR 122; R v Leak (1969) SASR 172; R v Leonard (CCA, 7 December 1998, unreported); R v Lewis [2003] NSWCCA 180; R v Liristis (2004) 146 A Crim R 547; R v Lyberopoulos [2002] NSWCCA 280; R v McCullough (1982) 6 A Crim R 274; R v Merritt (2004) 59 NSWLR 557; R v Praturlon (CCA, 29 November 1985, unreported); R v Reid [1999] NSWCCA 258; R v Rich (1998) 102 A Crim R 165; R v Robinson [2000] NSWSC 972; R v Robinson [2000] NSWCCA 359; R v Roulston (1976) 2 NZLR 644; R v Rugari (2001) 122 A Crim R 1; R v Slack (2003) A Crim R 314; R v Spathis and Patsalis [2001] NSWCCA 476; R v Taouk (2005) 154 A Crim R 69; R v Valera [2002] NSWCCA 50; R v Whitmore [1999] NSWCCA 75; Selsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; Shaw v The Queen (1952) 85 CLR 365; Whitehorn v The Queen (1983) 152 CLR 657.
PARTIES:	Sef Gonzales - Appellant The Crown - Respondent
FILE NUMBER(S):	CCA 591/07
COUNSEL:	P Byrne SC & G Brady - Appellant D Frearson SC & J A Girdham - Crown
SOLICITORS:	Dennis Miralis - Appellant S Kavanagh (Solicitor for Public Prosecutions) - Crown
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 70068/03
LOWER COURT JUDICIAL OFFICER:	James J
LOWER COURT DATE OF DECISION:	17 September 2004 (Sentence)
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v Gonzales [2004] NSWSC 822