Gonzales v The King

[2024] NSWCCA 80

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Gonzales v R [2024] NSWCCA 80

Hearing dates:

6 May 2024

Decision date:

22 May 2024

Before:

Leeming JA at [1];
Campbell J at [60];
N Adams J at [61]

Decision:

(1) Grant leave to appeal and extend the time within which to appeal.

(2) Dismiss the appeal.

Catchwords:

CRIME – appeal against conviction – whether miscarriage of justice because of representation at trial – whether defence conducted contrary to applicant’s instructions – whether self-defence not advanced – whether applicant not permitted to give evidence – whether letters written by applicant not given to judge – no miscarriage of justice

Legislation Cited:

Crimes Act 1900 (NSW), ss 33, 35

Evidence Act 1995 (NSW), s 191

Public Health Act 2010 (NSW), s 10

Category:

Principal judgment

Parties:

Cristian Mauricio Gonzales (Applicant)
Rex (Respondent)

Representation:

Counsel:
Applicant (self-represented)
S Traynor (Respondent)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/00164477

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

15 November 2021

Before:

Zahra SC DCJ

File Number(s):

2020/00164477

JUDGMENT

1. LEEMING JA: Mr Christian Mauricio Gonzales (which is sometimes spelt “Gonzalez”) seeks leave to appeal from his conviction in the District Court constituted by a judge and jury of one count of causing grievous bodily harm to Mr Jose Velasquez with intent to do so, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The indictment charged an alternative count of recklessly causing grievous bodily harm to Mr Velasquez in company, contrary to s 35(1) of the Crimes Act.

2. The trial took place over eight days in November 2021, and following the jury returning a verdict of guilty, the District Court imposed sentence of imprisonment for 6 years with a non-parole period of 3 years and 9 months. The sentence was backdated to commence on 22 September 2020 to allow for time in custody. The non-parole period expires imminently, on 21 June 2024. Mr Gonzales was also convicted of an offence contrary to s 10 of the Public Health Act 2010 (NSW) for permitting more than five visitors to his home (the offence took place early in the COVID-19 pandemic), but no further penalty was imposed.

3. Mr Gonzales makes no application for leave to appeal against the sentence, but it is clear from the above that he needs, and seeks, a substantial extension of time. The most important consideration in determining whether to grant an extension of time to permit his appeal against conviction to proceed is the strength or otherwise of that appeal. Accordingly, the hearing proceeded on the basis that Mr Gonzales was heard in full on the substance of his appeal.

4. Although in this Court Mr Gonzales was self-represented, at trial in the District Court in late 2021 he was represented by a public defender, Ms Madeleine Avenell SC, who was retained by LY Lawyers following a grant of Legal Aid.

5. The sole ground of appeal is, “There has been a miscarriage of justice: self-defence”. In handwritten documents supplied by Mr Gonzales when seeking an extension of time in which to appeal, he said that “my legal team led me to believe they were going to use duress and self-defence as the basis of my defence, but they failed to do so”, and that it was “my contention that these omissions led to an unfair trial”. Another document provided at the same time, and once again in Mr Gonzales’ handwriting, stated that his original solicitor from the same firm spent time with him to thoroughly understand his case, and that his solicitor’s intention was “for me to plead ‘duress’”. However, that solicitor left the law firm and his replacement, Mr Ashraf Jawas, was said to be “not as thorough”, “not invested in pursuing justice for me” and “rushed our meetings”. Mr Gonzales also said that because his own English was quite poor at the time, it was difficult to liaise with Mr Jawas. Mr Gonzales said:

I am not sure that he presented my case to the barrister Madeleine Avenell in a way that enabled her to effectively represent me. I offered to take the stand, but was not given the opportunity.

I was frustrated by this because they clearly failed to introduce all salient evidence on my behalf.

6. In light of one aspect of Mr Gonzales’ complaint, it is best to address his proficiency in spoken English immediately. Mr Gonzales speaks English as a second language. Nonetheless, he has lived in Australia for many years and his spoken English is fluent, although not flawless. A Spanish interpreter was present in the courtroom, and available to assist Mr Gonzales if he so chose. Immediately following appearances being taken, there was the following exchange:

LEEMING JA: Thank you Madam Crown. Mr Gonzales, as you’ve heard there is a gentleman in the Court who is a Spanish Interpreter.

APPELLANT: Yes.

LEEMING JA: However, to the extent that you’re comfortable speaking and understanding English, I was going to suggest that we see how we go but if there’s any difficulty whatsoever, you should know there is an Interpreter in Spanish who can be here to translate anything. Are you comfortable with that?

APPELLANT: Thank you. Yes thank you your Honour.

7. It was not necessary to call upon the services of the interpreter.

8. In order to advance his claim that a miscarriage of justice had occurred by reason of the way he had been represented at trial, Mr Gonzales formally waived privilege, and both Mr Jawas and Ms Avenell prepared affidavits. Mr Jawas gave short further evidence in chief concerning the timing of the decision for Mr Gonzales not to give evidence at trial, and was not required for cross-examination by Mr Gonzales. Nor did Mr Gonzales seek to cross-examine Ms Avenell, as is apparent from the following:

LEEMING JA: Mr Gonzales?

APPELLANT: Yes, your Honour.

LEEMING JA: You heard that the Crown had anticipated wanting to cross examine you about some of your affidavits.

APPELLANT: Yes.

LEEMING JA: You also have a right, if you want, to cross-examine the barrister, Ms Avenell, about her affidavits if you want. You probably heard me tell the Crown that it’s plain that on some things there’s a dispute between you and offering to say that there’s no need for you to put your case and no need for the Crown to put their case, because that’s plain on the face of the affidavits.

APPELLANT: Yes.

LEEMING JA: The Crown wanted to hear what you wanted to say at this stage. Do you have any questions you want to ask Ms Avenell, who I think is available if you want to cross-examine her?

APPELLANT: No, I don’t have any questions for Ms Avenell because I only recall two conversations with her because the conversation was in person, so I remember that two conversations with her, it was on trial.

9. To anticipate what follows, in important respects Mr Gonzales’ recollection of what occurred at trial and the decisions made in connection with it is demonstrably incorrect, perhaps because he did not appreciate fully what was occurring at the time, or perhaps because of the more than three years which has ensued. In order to explain this, it is not necessary fully to summarise the evidence at trial, although it is necessary to provide an overview of the key issues and forensic decisions.

Overview of the trial

10. There was no dispute that on the night of 29-30 May 2020 Mr Velasquez sustained serious injury causing skull fractures on both sides of his head and bleeding on the brain, because of wounds suffered at premises on President Ave, Monterey in Southern Sydney. It was not in dispute that there was a party that evening, that attendees were drinking beer, and that at around midnight there was an incident inside the house involving Mr Velasquez, and that sometime after this there was an incident involving Mr Velasquez and Mr Gonzales outside the house. Mr Velasquez was admitted to the Emergency Department of St George Hospital at 1.20am on 30 May 2020, presenting with extensive bruising to his face and skull, swelling and abrasions to his face, bleeding from both ears and a 3-4cm laceration behind his right ear. A CT scan revealed that he had skull fractures on both sides of his head. The laceration behind his ear was stapled but became infected and required surgery and antibiotics. The foregoing, together with the fact that the injuries sustained by Mr Velasquez amounted to grievous bodily harm, were tendered as agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW).

11. In her opening to the jury, on the morning of 3 November 2021, Ms Avenell said:

My job is just to point out to you at the moment the areas of the trial that are and are not in dispute, and I propose to do that at a pretty high level of generality. To look first at some things that are not in dispute, it’s not in dispute that Mr Gonzales was a resident of xxx President Avenue Monterey, and it’s not in dispute that he was either the host, or at least having a party there over the night of 29, 30 May 2020. It’s not in dispute that Mr Velasquez was one of the attendees at the party, and it’s not in dispute that Mr Velasquez and other members of the party were drinking significant amounts. It’s not in dispute that around midnight on the night of 29 and 30 May 2020, there was some incident inside the house involving Mr Velasquez, and it’s not in dispute that sometime after this, there was an incident outside [with] Mr Velasquez, but also Mr Gonzales.

Jumping ahead a little bit, it’s not in dispute that Mr Velasquez ended up on the path or the footpath outside xxx President Avenue on the ground. And, it’s not in dispute that when he was there on the ground, he had suffered some serious injuries, and injuries that would amount to grievous bodily harm, in particular, as the Crown’s identified, some skull fractures. So much is not in dispute.

But, what is in dispute is what took place outside xxx President Avenue, and what took place in the sense of how Mr Velasquez came to be seriously injured. Mr Gonzales disputes that it was any act of his that intentionally or recklessly caused those injuries to Mr Velasquez. And, to the extent that there was any physical contact between Mr Gonzales and Mr Velasquez, Mr Gonzales says that he did that in self-defence and defence of the other people at the party, and to protect his house and to get rid of Mr Velasquez from his property. (Emphasis added.)

12. In the Crown case, Mr Velasquez, various neighbours and various attendees of the party gave evidence. One of the attendees who gave evidence was Mr Julian Salazar Castano, who had pleaded guilty to reckless wounding in company and gave evidence that he had seen Mr Gonzales strike Mr Velasquez with a brick or rock, and that he had lied in his interview to police that evening when he said that he had seen nothing.

13. In support of his appeal, Mr Gonzales relied on parts of the neighbours’ evidence, and in particular upon two 000 calls which were made, separately, by two of them. One said of the party that “it’s gotten out of hand umm they all [went and they’ve] got a massive rock and they’re smashing it on the front door to break in, to get back in”, while the other said:

Okay, there is someone on the ground, there is someone, I can see three people, the one on the ground, and then there’s two more, three more, so whoever’s on the ground, I don’t know what that’s about, but they were banging. I don’t know what they were banging, but it got us all out of bed and I’m shaking and I’m really worried about the person on the floor.

14. Mr Gonzales also relied on photographic evidence, which had been tendered at the trial, showing the damage to the front door, which he said had been inflicted by Mr Velasquez. All of that may be accepted.

15. But some of the neighbours gave direct evidence of the assault. For example, one said:

So what I saw there was the man that was still standing. He picked up what looked like a brick from around him, and the reason why I say it was – I thought it was a brick at the time was because there were bricks scattered around from a fallen brick wall. And he picked up this object that looked like a brick and he lifted his arm with the brick above his head and he threw it on to the person on the ground. I do not – I do not know where it landed exactly, but it was definitely aimed at the person on the ground.

16. There was also forensic evidence of a fragment of brick with blood stains on it, and medical evidence to the effect that a brick thrown with considerable force could have caused the injuries.

17. Mr Gonzales said to this Court, and more importantly had said in an electronically recorded interview with police on 2 June 2020, which was played to the jury, that he was scared when Mr Velasquez smashed a window and broke in through the door.

18. However, in the same interview, Mr Gonzales had also repeatedly denied hitting Mr Velasquez with a brick. He accepted that he pushed Mr Velasquez, but maintained that he did not punch him and did not hit him with a brick. His answers included the following:

Q220: Did you hit him with a brick?

A: No. Because there’s no, there’s no bricks, I was inside, there’s no bricks inside the house. And the, the other person was completely like this. He’s … the letterbox is … and he fell, he fell, he fell on the letterbox but he had a rock in the …, like this. He had the rock … next to him. He had, like, had it like this. There’s no bricks in the house.

…

A: Oh, also … I didn’t hit him with a brick, because there’s no bricks, on the head, in the house, to, to hit him.

Q230: Yeah.

A: And, and then they come out and ask, we’re out in the dark, push him out.

Q231: When you, so you were there when, when the mailbox was broken though. Right?

A: Yeah, but that was too quick, I didn’t see, like, about, he had a, a rock in the …, like this.

Q232: And what was he doing with that?

A: He was trying to swing like this to us.

Q233: To where?

A: To us, like, like this.

Q234: OK.

A: I think maybe he push, like, when he, push out, he fell on the letterbox and he’s smack himself in the head with the rock. But no one here hit him with a brick.

19. Mr Gonzales was confronted with accounts of other witnesses, but denied that he had thrown a brick. Indeed, he denied there were any bricks at the premises.

20. On the afternoon of 9 November 2021, which was the sixth day of the trial, Ms Avenell advised the trial judge, in the absence of the jury, that self-defence would not be relied upon. As I read the transcript, she seems also to have implied that Mr Gonzales would present no case and that addresses would take place the following day. Whether or not that is so, on the following morning, and this time in the presence of the jury and immediately after the last Crown witness had given evidence, Ms Avenell confirmed that there was no case for Mr Gonzales. The trial judge immediately thereafter gave directions to the effect that there was no requirement for Mr Gonzales to present a case and that at all times it was for the Crown to prove its case beyond reasonable doubt, with Mr Gonzales bearing no onus and not having to prove anything. That anticipated a direction given in his Honour’s summing up. It may be noted that there was no complaint about any aspect of the summing up, or any of the directions given to the jury.

21. Ms Avenell did not address the jury on self-defence. Very early in her address she said:

The prosecution case depends on you accepting three things: one is Mr Gonzales threw or struck a brick or whatever item at Mr Velasquez, and the Crown doesn’t even have consistent evidence on that first point, although I’ll come back to that; second, that the brick or item hit Mr Velasquez to the head, and third, that that hit caused all or some of his skull fractures. I’m going to explain to you why the Crown hasn’t done that.

22. Ms Avenell then addressed on the conflicting accounts at trial, and the medical evidence concerning the injuries sustained by Mr Velasquez.

23. The trial judge when summing up made it clear that if the jury accepted Mr Gonzales’ denial in his interview that he had struck Mr Velasquez, or if while not completely accepting what he had said, nonetheless had a reasonable doubt as to whether the Crown had made out an essential element of its case, they must acquit.

24. The most efficient course is to address in turn the various matters on which Mr Gonzales relies in support of his appeal.

Self-defence not mentioned?

25. In his written and oral submissions, Mr Gonzales complained that his case based on self-defence was not put at trial. In his words, “in my trial, self-defence never got mentioned” (Tcpt, 6 May 2024, p 11(4)). During his address, Mr Gonzales was directed to the transcript of Ms Avenell’s opening reproduced above, and there ensued the following exchange:

LEEMING JA: I think I understand your case which is self-defence wasn’t mentioned when it mattered, at the end of the trial, but it does seem to have been mentioned at the beginning of the trial.

APPELLANT: Yes.

LEEMING JA: I thought I should raise that with you in light of what you said.

APPELLANT: It was miscommunication, the interpretation between my solicitor Jawas. He want me to plea not guilty, he advise me to plea not guilty. He advise me to plead not guilty when I told … I heard the person but he thought he have a case with not throwing any object at the victim because there was no DNA, that’s why he I understand he – it went everything wrong. So in that point I wrote a letter to Legal Aid and I say if it’s possible I can transfer my case to another legal firm. And Legal Aid answer to me, they say that won’t be possible because is only Legal Aid that have budget to do so, so I have to stick with my lawyer. And I sent another letter saying I think I’m going to lose my case to the Legal Aid, because in that time I knew Mr Jawas was not the solicitor for me because he’s not following my request.

26. It is plain that self-defence was opened on the first day of the trial, but withdrawn at the end of the trial; Mr Gonzales’ recollection to the contrary is incorrect. The stance adopted by the defence permitted Mr Gonzales to reserve to himself the right to choose between the two diametrically opposed ways of advancing his defence: putting the Crown to proof on whether it had established that he had caused the grievous bodily harm sustained by Mr Velasquez, or accepting that he had done so but saying that it had occurred in self-defence. Mr Gonzales’ account of dissatisfaction with Mr Jawas, in advance of the trial, concerning the abandonment of self-defence is inconsistent with the facts established by the transcript and Ms Avenell’s notes that self-defence was explicitly opened upon and abandoned at the end of the trial.

Only two conferences?

27. Mr Gonzales said, repeatedly, that he only had two conferences with Ms Avenell. Yet her affidavit annexes file notes prepared by her or her instructing solicitor of conferences with counsel, solicitor and client, which plainly were more numerous than Mr Gonzales could remember. The notes are dated 30 September, 7 October, 14 October, 22 October, 25 October and 27 October. In many cases there are notes of the same conference by her and by Mr Jawas. In a note dated 22 October, Ms Avenell referred to recently served statements by Mr Salazar Castano and Ms Amy Reed. Ms Reed’s new statement was not in evidence, but its content may readily be inferred from her evidence-in-chief that she saw Mr Gonzales throw a brick at Mr Velasquez while the latter was lying on the ground, she saw it land on his head, and she had tried to stop Mr Gonzales from doing so but “by the time I got there the brick was already thrown”. That this account was only provided shortly before the trial was summarised by the judge when imposing sentence:

The reliability of the account of Ms Reed was challenged in cross-examination. Ms Reed gave inconsistent accounts of her observations prior to giving evidence in the trial. In cross-examination Ms Reed was taken to each of the prior accounts. Generally at the outset she told police that the victim “smashed” his head on the letter box and then fell to the pavement. The first time Ms Reed gave an account consistent with the evidence she gave in the trial was shortly before the trial commenced in October 2021.

28. Consistently with the above, in her re-examination Ms Reed gave the following evidence:

Q. You were asked about giving the statement on 21 October 2021?

A. Yes.

Q. And you were asked whether that was the first time you’d told police what you’ve said today in Court, about Cristian and the police. Do you remember being asked about that?

A. Yes.

Q. You said, “Yes, that’s when I told my whole truth”?

A. Yes.

…

Q. When was the first opportunity you had to tell the truth?

A. I’m sure I had an opportunity to tell the truth throughout the whole thing and the day that I first got to take the statement, the night of it all happening, but with not thinking of it and being away from it for almost two years and finally moving away when I did get called in and I got told that I did have a time that I could tell the truth, like I’ve said, the main thing I wanted to do was tell the truth when I’ve sat down and I’ve actually realised that I lied for completely no reason and I wouldn’t want anyone to do that if that was my baby in that position. …

29. In light of this new statement, Ms Avenell’s note of 22 October recorded, “very serious risk will be found G”.

30. Notes of 25 October on LY Lawyers notepaper, presumably made by Mr Jawas, contain the following:

Rock near him (behind his head his right side)

“picked it up and threw it away” – it

landed on the footpath

NOT PLEADING TO RECKLESS

31. Based on those notes, Ms Avenell refuted the allegations made by Mr Gonzales that she only spoke to him twice. She did so in considerable detail, in paragraphs 8-28 of her affidavit. As earlier noted, Mr Gonzales challenged none of this. It is perfectly clear that Mr Gonzales’ recollection is incorrect on this issue.

Self-defence not relied on

32. One of those file notes, dated 22 October 2021, records a conversation concerning the possibility that Mr Gonzales would plead guilty. Some of the writing is difficult to decipher, but its sense seems to be that he would plead guilty “to push causing injury, but the rock was thrown past him … [He] pushed him because he came to hit me with a rock”. Mr Jawas has then recorded in capitals:

DON’T THINK CAN OFFER TO PLEAD IF DON’T ACCEPT HIT WITH ROCK

33. That exchange appears to capture the essential dilemma confronting Mr Gonzales at the trial. On the one hand, he wished to require the Crown to prove beyond reasonable doubt that the injuries sustained by Mr Velasquez were caused by the brick or rock thrown by him. On the other hand, he also wished to advance a case of self-defence, but that case presupposed that he had injured Mr Velasquez.

34. Ms Avenell gave evidence, which as noted above was not the subject of challenge, as to why self-defence was not relied upon. She did so not by reference to her recollection in 2024, but in accordance with a note annexed to her affidavit and dated 22 December 2021. The affidavit also annexed her email of that note to her instructing solicitors of that date. The note states as follows:

I opened on self-defence (and defence of others and property). This defence was not, however, pursued at closing. The reason for this was that self-defence effectively presupposes the alleged conduct (or something like it) was done; but the focus was put instead on saying that there were explanations for Mr Velasquez’s injuries, which could not be excluded beyond reasonable doubt, other than what was alleged by the prosecution. Also, accepted Ms Kypriotis, although it was a charged situation where Mr Velasquez had been violent himself, Cristian threw a brick/fragment at him when he had fallen on the mailbox and was motionless on the ground. It is doubtful the jury would have considered this was done in self-defence, as defined in s 418(2). Also, Christian’s instructions, as in [9] above, do not reflect self-defence.

35. The reference to “[9] above” was the following paragraph:

Cristian’s instructions were that he threw the big rock in photograph 8 to 23, to get it away from Mr Velasquez, and it did not hit his head. I attempted to suggest this to Ms Kypriotis at T pp 103-105, although not successfully, as her evidence was to the effect that she saw him throw something that was lifted above his head with one hand. That could not have been the big rock.

36. The client’s instructions were contained in a three page document, also annexed to Ms Avenell’s affidavit, which set out Mr Gonzales’ account of what had occurred. She said that the document was amended from time to time by Mr Gonzales, and that she had annexed the final version dated 3 November 2021. The statement included:

I didn’t see anyone hit or kick him. I did not hit or touch him with a brick. I didn’t touch any of the bricks. No one moved or touched him.

I didn’t see injuries to his head and didn’t think about him being injured. I just heard him moaning and moving like a drunk. I didn’t know what to do.

37. There was no challenge to any of Ms Avenell’s evidence.

38. In some of his submissions to this Court, Mr Gonzales said that he did not tell the police that he had struck Mr Gonzales because he was at the time still in fear of his life. What is clear is that (a) his electronically recorded interview denies hitting Mr Velasquez with a rock, and (b) the notes provided to his counsel likewise deny doing so.

39. No basis has been demonstrated to call into question the appropriateness of what occurred at trial concerning self-defence. Advancing that defence would have required acknowledging that he had knowingly lied to the police in the immediate aftermath of the altercation, and abandoning the defence based on the perceived weaknesses in the Crown case establishing that a rock or brick thrown by him had wounded Mr Velasquez.

Failure to give evidence

40. Mr Gonzales also complained that he was not permitted to give evidence. Evidently there was discussion towards the conclusion of the Crown case of whether he would give evidence. The best evidence of what occurred is the note prepared by Ms Avenell immediately after sentencing:

Cristian did not give evidence. He would not have been a good witness. The jury would inevitably have preferred Ms Kypriotis’ version. Also, the jury had Cristian’s ERISP in which he denied hitting Mr Velasquez with a brick and said he was injured when he fell into the mailbox.

41. In her affidavit, Ms Avenell also gave the following evidence about this decision:

I only have a very general recollection of speaking to Mr Gonzales about giving or not giving evidence, prior to trial. I expect I advised him, as I advise most clients, that I would approach the trial on the basis that he wasn’t giving evidence and only call him if, at the end of the prosecution case, it was really necessary.

42. It is perfectly plain that if Mr Gonzales had gone into evidence and advanced a case of self-defence, he would have had to acknowledge lying to the police, which would necessarily have damaged the jury’s assessment of him, at the conclusion of the trial, shortly before they retired to deliberate.

43. If Mr Gonzales had gone into evidence but not advanced a case of self-defence, he would nonetheless be exposed to cross-examination concerning his statements to police, and he would have been confronted with the Crown case.

44. Nothing in the appeal books, and nothing that I have seen while hearing Mr Gonzales advance his case in this Court, casts any doubt upon the accuracy of the assessment made at trial that if Mr Gonzales had given evidence, it would not have advanced his case.

The letters to the judge

45. At the commencement of his submissions in reply in this Court, Mr Gonzales referred to two further letters:

APPELLANT: Your Honour sorry to interrupt you, I’ve got something else in here. I remember really really important.

LEEMING JA: Yes.

APPELLANT: When I give to Ms Avenell on trial I give a letter, if she can possibly give to the judge and she say give me one second. So she read the letter and she say “No we cannot give this letter to the judge”. I said “Why not”? And she say “Because it doesn’t support my case” and I say “But it explain everything, I heard the person and I defend myself”. I got the letter here with me, two pages letter.

LEEMING JA: Is the letter in the materials before us?

46. The letters had been attached to a previous notice of appeal filed by Mr Gonzales which did not comply with the rules. The Registrar’s directions in advance of the appeal had obliged Mr Gonzales to identify the evidence he relied upon, which had not included these documents. Accordingly, they had not been the subject of evidence or submissions from the Crown, nor had they been included in the appeal books.

47. Nonetheless, bearing in mind the seriousness of the appeal to Mr Gonzales, the fact that he was not represented, and the fact that he said that the letters were said to be very important, the letters were tendered. There followed brief cross-examination by the Crown of Mr Gonzales, and a grant of leave for the Crown to adduce further evidence on those documents from the lawyers who formerly had acted for him, or alternatively to advise that what had already been said about other letters written by Mr Gonzales extended to these letters.

48. Both letters appear to be in Mr Gonzales’ handwriting. The first is dated 3 November 2021, and is addressed “To: your Honour”. The letter implies, although it falls short of squarely stating, that he hit Mr Velasquez with a brick. After saying that he separated Mr Salazar Castano and Mr Velasquez from a fight in the kitchen, and evicted him from the premises, the letter states that Mr Velasquez returned a few minutes later, and threatened to kill him. Mr Gonzales picked up a piece of brick, and after Mr Velasquez had tripped over backwards, and had fallen to the ground but was still threatening to kill him, the letter stated:

I reacted and threw the piece of brick I had at him, before he had the chance to throw his piece at me. It was the only way I had to defend myself. I feared for my life because he was so angry and yelling that he was going to kill me. I believed him.

Despite the ill will he held against me I am relieved that he is OK and that he was not fatally injured.

I am very sorry for everything that occurred on the night of these events.

49. The second letter, dated 10 November 2021, which is addressed to Jose Velasquez, once again implies that he injured him but does not say so explicitly. Relevantly, it stated:

I honestly was trying to defend myself from you when you smashed down the locked door to my home I was really scared and you threatened to kill me. I thought I was going to lose my life. I hope you can understand that my actions stemmed from this fear.

I wish I could take all this back. I am very relieved that you are OK.

50. The first letter was dated 3 November 2021. That was the second day of the trial, after the jury had been empanelled. If the letter was provided on that date, it could not have been given to the judge. The second letter, dated 10 November 2021, was the seventh day of the trial, during closing addresses.

51. The final substantive paragraph of Ms Avenell’s note from 22 December 2021 is as follows:

Cristian was keen for me to tender a letter from him. He attempted several versions. I declined to tender any of them. The only purpose of such a letter would be to accept responsibility and show some remorse, even with a mitigatory explanation for the offence. Cristian’s letters did not do this. They largely shifted the blame to Mr Velasquez and did not accept the jury’s verdict.

52. There is no reason to doubt any aspect of the contemporaneous notes supplied by counsel who then acted for Mr Gonzales.

53. It is quite plain that neither letter, even if the dates are accurate and they had been provided to Ms Avenell at that time, could have been provided to its addressee. Mr Gonzales gave evidence to this Court, when being cross-examined by the Crown, that he gave the letter addressed to the trial judge to Ms Avenell at some later stage. She appeared for him at the sentence hearing, which seems to have taken place on, or perhaps shortly before, 17 December 2021 (the transcript is not included in the appeal books). Although it may be accepted that part of Mr Gonzales’ grievance is that the letter was not shown to the trial judge, nothing turns on this. Assuming, favourably to Mr Gonzales, that his letter was written on the date it bears, that was the day after the jury was empanelled and the letter could not have been provided to the trial judge at any time prior to the jury’s verdict.

54. That is sufficient to resolve this aspect of Mr Gonzales’ complaint. As noted above, the Crown was given leave to adduce further evidence from Ms Avenell in relation to the letters which Mr Gonzales belatedly sought to rely upon. She did so by affidavit dated 9 May 2024. She said that she did not see the letter dated 3 November 2021, that she was confident she had not seen it until it was sent to her on 6 May 2024, and that she doubted she could have continued to appear for Mr Gonzales had she been given it. She said that the final paragraph of her note from 22 December 2021 did not apply to the letter dated 3 November 2021. She said that she did not remember seeing the 10 November 2021 letter, but might have done so, and that if she had received it she would have said: “We are still in the trial and I can’t just give documents to the judge. If we get to it, these kinds of letters can be used for the sentence”.

55. Even putting to one side Ms Avenell’s further affidavit, I am not satisfied that Mr Gonzales gave the 3 November 2021 letter to Ms Avenell. His recollection is demonstrably unreliable. It is inconsistent with the typewritten instructions on which the defence was conducted. And if counsel had been given the letter, it is likely that the trial would have taken a different course. Ms Avenell’s 9 May 2024 affidavit is confirmatory of the position I would reach in its absence.

56. It is also clear from another handwritten (and this time undated) letter from Mr Gonzales emailed from Parklea Correctional Centre to Ms Avenell on 10 December 2021 in which he acknowledged throwing a brick but insisted that he “threw it on the ground out of his reach so he couldn’t hit me with it”, that Mr Gonzales has written a number of accounts from time to time, inconsistent with one another.

57. The fact that the Court permitted Mr Gonzales to rely on new evidence in reply has caused a deal of attention to be given to a point not hitherto mentioned by him. However, for the reasons given above, it does not persuade me that there is anything unsafe about his conviction, or anything deficient about the way his defence was conducted. To the contrary, everything I have seen about the conduct of the defence tends to confirm that Mr Gonzales was fully informed of his legal entitlements, was given advice which was more than competent, and took advantage of such avenues of defence as were properly available to him. It is true that it would have been open to Mr Gonzales to run a defence of self-defence, but that would have required him admitting that he had lied to the police in his electronically recorded interview, not to mention dealing with the evidence that when he threw the brick at Mr Velasquez, the latter was lying on the ground.

Conclusion and orders

58. For those reasons, nothing that has been advanced by Mr Gonzales causes me any concern that there has been a miscarriage of justice. The contrary is the case.

59. In light of the full argument that has proceeded, I propose that there be a grant of leave and the requisite extension of time. However, the appeal should be dismissed.

60. CAMPBELL J: With respect, I agree entirely with what Leeming JA has written and with the orders his Honour proposes. I would simply wish to add while it is clear law that it is the right of an accused person to decide whether or not to give evidence in his or her own defence regardless of the views of counsel, like all matters involving the important decisions to be made by the defence in the conduct of a criminal trial, the accused will almost always look to his or her counsel for advice on the better course to adopt where there are options. I am satisfied that the evidence of Ms Avenell and Mr Jawas, which I accept, establishes that Mr Gonzales was made aware of his right but received the advice of counsel that it would be unwise for him to exercise that right for the reasons explained by Leeming JA (at [42] – [43] above). I am satisfied that Mr Gonzales was content to accept counsel’s sagacious advice.

61. N ADAMS J: I agree with the orders proposed by Leeming JA for the reasons provided by his Honour. At the commencement of the hearing of this appeal, the central issue was whether the applicant’s trial had miscarried because of the manner in which senior counsel conducted his defence. The specific complaint was that she failed to rely on self-defence in her closing address. Given that his instructions at trial were a denial that he caused the victim’s injury, there was no proper basis for self-defence to be left to the jury. In these circumstances, the applicant faced significant difficulty in establishing a miscarriage of justice.

62. As Leeming JA has explained, it was only in the applicant’s submissions in reply that he produced documents to the court which he contended proved that he had in fact instructed his solicitor and barrister that he did do the act which caused the injury. If the applicant’s new version of events was accepted, then his appeal may have had prospects of success but that is not the case. I am unable to accept the applicant’s belated account that he provided different instructions to his lawyers then those upon which his defence was based for the reasons provided by Leeming JA at [53]-[56].

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Decision last updated: 22 May 2024