Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 5) [2024] NSWSC 182

Supreme Court New South Wales

Medium Neutral Citation: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 5) [2024] NSWSC 182 Hearing dates: On the papers Date of orders: 29 February 2024 Decision date: 29 February 2024 Jurisdiction: Common Law - Criminal Before: Harrison CJ at CL Decision: The Court refuses to consider or otherwise deal with the application Catchwords: CRIME – Appeal and review – Application to Supreme Court under Part 7 – where applicant had already made several Part 7 applications – where no special facts or special circumstances arise justifying further action – Court declines to consider or deal with the application Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79 Cases Cited: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2018] NSWSC 787 Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412 Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 3) [2021] NSWSC 263 Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW); (No 4) [2023] NSWSC 323 Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321 R v Gonzales [2004] NSWSC 822 Category: Principal judgment Parties: Sef Gonzales (Applicant) Attorney General for NSW (Respondent) Representation: Counsel: C Brain (Respondent)

Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 2023/309619 Publication restriction: Nil

JUDGMENT 1. HIS HONOUR: Sef Gonzales was found guilty by a jury of the murder of his sister, his mother and his father in a trial that concluded in May 2004. He was sentenced by James J in September that year to three life sentences: R v Gonzales [2004] NSWSC 822. In November 2007, his appeal against the convictions and sentences was dismissed by the Court of Criminal Appeal: Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321. 2. Thereafter, Mr Gonzales has made a series of applications to this Court pursuant to s 78 of the Crimes (Appeal and Review) Act 2001. The first application was made on 7 June 2017 and was dismissed by Adamson J on 29 May 2018: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2018] NSWSC 787. The second application was made on 8 August 2018 and was dismissed by McCallum J on 28 October 2019: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412. The third application was made on 18 November 2019. On 22 March 2021, Fagan J refused to consider or otherwise deal with the application: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW); (No 3) [2021] NSWSC 263. The fourth application was made on 16 July 2021 and dismissed by Lonergan J on 3 April 2023: Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 4) [2023] NSWSC 323. 3. Mr Gonzales has now made a fifth application to this Court which was filed on 29 September 2023. The application is said to be based on factual errors on the record, which resulted in the dismissal of a previous application, that have not been rectified in any previous proceedings. The factual errors are said to relate to evidence which gives rise to a doubt or question as to Mr Gonzales' guilt and the key forensic evidence in the Crown's circumstantial case. The unresolved doubts or questions are said by Mr Gonzales to satisfy s 79(2) of the Act, such that the whole case should be referred to the Court of Criminal Appeal pursuant to s 79(1)(b) of the Act. 4. The facts and procedural history that give rise to this application are well known to Mr Gonzales. They are otherwise on the public record, published in the form of the sentencing remarks of James J, the judgment of the Court of Criminal Appeal and in the four previous applications made by Mr Gonzales pursuant to s 78 to which I have already referred. So too are the terms of s 79 of the Act. Accordingly, except to the extent necessary, I do not therefore propose to repeat what has already been said. 5. Mr Gonzales makes submissions in support of the present application that go to two topics: 1. That there is a doubt as to evidence given in the trial by Dr Phillip Maynard to the effect that paint found on the sleeve of Mr Gonzales' jumper was indistinguishable from blue graffiti paint used by the murderer at the crime scene (the blue paint issue). 2. That there was an absence of forensic evidence implicating Mr Gonzales in the murders, or evidence that he had disposed of any evidence or cleaned up following the murders, in circumstances where such evidence might be expected if he were the murderer (the clean-up/disposal evidence issue).

The blue paint issue 1. The evidence at the trial was that words had been spray painted on an internal gyprock wall of the Gonzales' house. The paint colour was blue. The police also detected a sample of blue paint in the fibres of a jumper owned by Mr Gonzales. The question arose as to whether the paint on the wall and on the jumper were one and the same. 2. Mr Gonzales made the following submissions: "5. Central to the Crown's circumstantial case is the evidence of Dr Maynard, who found that paint located on Mr Gonzales' jumper was 'indistinguishable' to graffiti paint at the crime scene. Dr Maynard's report was dated 12 June 2002, and Mr Gonzales was arrested the very next day on 13 June 2002, over eleven months after the murders. This indicates that Dr Maynard's report was the trigger for Mr Gonzales' arrest, and that without this report there was insufficient evidence to charge Mr Gonzales. 6. On 30 July 2001, the paint in the jumper and the graffiti was analysed by Mr Wuhrer at the Microstructural Analysis Unit at the University of Technology, Sydney. Mr Wuhrer used a Scanning Electron Microscope (which Dr Maynard did not employ) and found 'differences' between the paint in the jumper fibres and the graffiti paint. Mr Wuhrer's evidence, which casts doubt on Dr Maynard's finding, was not adduced during the trial. 7. In a previous inquiry application, it was submitted that trial counsel was incompetent because the exculpatory evidence from Mr Wuhrer was not put before the jury. This was dismissed on the basis that the analysis by Mr Wuhrer 'was not a comparison of paint with paint but rather of paint with paint-stained jumper fibres' and that it was noted by police that further confirmatory analysis was required, which was conducted by Dr Maynard who used sensitive techniques. 8. The basis for dismissing the analysis by Mr Wuhrer is factually incorrect for the following reasons: (a) Mr Wuhrer compared the elements present 'in' the jumper fibres with the graffiti paint. Given that these were paint-stained jumper fibres, then the elements that were present 'in' the jumper fibres were paint. Therefore, Mr Wuhrer was comparing paint with paint. (b) Dr Maynard's analysis was based on a comparison of paint with paint-stained jumper fibres. Thus, if such a comparison was a basis to dismiss Mr Wuhrer's evidence, this should equally be a reason to dismiss Dr Maynard's findings. (c) The confirmatory analysis was conducted by Mr Waight at the Division of Analytical Laboratories, who confirmed Mr Wuhrer's findings by concluding that no paint resembling the graffiti paint was found on the jumper. (d) The equipment used by Mr Wuhrer and Mr Waight was evidently more sensitive than those used by Dr Maynard because the former was able to detect differences which the latter could not. 9. In light of the findings by Mr Wuhrer which were confirmed by Mr Waight, Dr Maynard's conclusion that the paint samples were 'indistinguishable' does not mean that the samples were an exact match. It simply means that based on the equipment Dr Maynard used, which did not include a Scanning Electron Microscope, he was unable to detect any differences which were nonetheless present and detectable had more sensitive equipment been employed. 10. The expert evidence of Mr Wuhrer, which gives rise to a doubt or question as to the key forensic evidence in the Crown's circumstantial case, should have been adduced at trial and the failure to do so deprived Mr Gonzales of a chance of acquittal that was fairly open." 1. The Attorney General responded as follows: "52. On 30 July 2001, Mr Gonzales' jumper was examined by Richard Wuhrer, an analyst at the UTS. Mr Wuhrer did not prepare a formal report and did not give evidence at Mr Gonzales' trial. Rather, his 'evidence' is recorded in DSC Elliott's statement as follows [25] … In company with Richard WUHRER I assisted in conducting a preliminary Environmental Scanning Electron Microscope examination on a number of fibres removed from a blue stain on the left arm of a grey jumper… An elemental analysis of the jumper fibres was compared to an elemental analysis of a sample of the blue graffiti from [the crime scene] and a sample of the cream wall paint from the living room wall at XX Collins Street. … [27] The preliminary Scanning Electron Microscope examinations showed a number of similarities and differences in the elements present in the jumper fibres and the blue graffiti paint. At the completion [of, sic] the examinations it was determined that more specific, confirmatory forensic analysis was required. 53. On 7 August 2001, '[m]inute traces of blue were microscopically detected on individual fibres of the … left sleeve fabric' when the jumper was examined by Darrell Waight, a chemist (along with a number of other exhibits). A report prepared by Mr Waight records that there was 'insufficient material for it to be characterised'. Mr Waight went on to say in his report that 'no paint resembling the reference blue paint of Item #1 [being a sample of blue spray-paint from the wall] was found on any other item…' and that 'given the above, no conclusions regarding the relevance of these results can be drawn at the time'. Mr Waight was not called at the trial and his evidence was not otherwise adduced. 54. On 18 January 2002, the jumper was examined by Dr Maynard, a Scientific Officer at the Department of Chemistry, Materials and Forensic Science at the UTS. In a report dated 12 June 2002, Dr Maynard concluded that the paint found on the jumper was 'indistinguishable' from the spray-paint found at the family home, having regard to both colour and chemical composition. Dr Maynard used Raman microspectroscopy, microspectrophotometry and optical microscopy in his analysis. Dr Maynard gave evidence consistent with his report at Mr Gonzales' trial. In his oral evidence he described microspectrophotometry as an 'extremely sensitive' instrument to measure colour. He said that Raman microspectroscopy allowed for the examination of chemical constituents of a sample including samples that are 'very small'. 55. In the context of the above evidence Mr Gonzales submits: (a) That Mr Wuhrer used a Scanning Electron Microscope (SEM) and found 'differences' in the jumper fibres and the graffiti paint (as above, he in fact found both 'similarities' and 'differences'): Application at [6]; (b) That SEM is 'universally accepted as critical in all fields that require characterisation of solid materials' and that there is 'arguably no other instrument with the breadth of applications in the study of solid materials that compares with the SEM'. In this respect Mr Gonzales refers to an article by Susan Swapp of the University of Wyoming: Application at fn 5; (c) That McCallum J was wrong in Gonzales (No.2) to dismiss the ground that his trial counsel was incompetent in not cross-examining on the 'exculpatory' evidence of Mr Wuhrer and that it was factually incorrect for her Honour to reason that Mr Wuhrer's comparison was 'not a comparison of paint with paint but rather of paint with paint-stained jumper fibres', as her Honour did at [92]: Application at [7]-[8]; (d) That Mr Wuhrer's findings were supported by Mr Waight who concluded that 'no paint resembling the graffiti paint was found on the jumper': Application at [9]; (e) That Mr Wuhrer and Mr Waight used more sensitive equipment than Dr Maynard. Mr Gonzales cites in this respect an audio recording of a BBC interview with Professor Colin Humphreys of the University of Cambridge for the proposition that the SEM utilises shorter wavelengths than the wavelength of light and that the shorter the wavelength the greater the sensitivity. He also submits that the conclusion that more sensitive technology was used is apparent from the detection of 'differences' which Dr Maynard did not detect: Application at [8]-[9] and fn 12; (f) That Dr Maynard's evidence, viewed in light of the earlier findings, simply meant that he was unable to detect the differences which were present and detectable had more sensitive equipment been employed: Application at [9]; and (g) That Mr Wuhrer's evidence casts doubt on Dr Maynard's evidence: Application at [10]. 56. As above at [13], Part 7 of the CAR Act does not provide an opportunity to Mr Gonzales to re-run his trial on the papers. Mr Gonzales did not dispute that there was blue graffiti paint on his jumper at trial but put forward an innocuous explanation for it. Accordingly there was no real challenge to Dr Maynard's evidence during the trial. 57. The Attorney's primary submission is that it is open to the Court to refuse to further consider this matter pursuant to s 79(3) on the basis that it has been dealt with fully in Gonzales (No. 2) and Gonzales (No.4), and there are no special facts or circumstances warranting further action, or otherwise in accordance with the Court's discretion. 58. While the precise arguments Mr Gonzales puts may differ to some extent to how the issue has been approached in previous applications, the fundamental issue is his contention that Dr Maynard's evidence is called into question by the earlier analysis of Mr Wuhrer (and to some extent Mr Waight). That suggestion founded the argument considered in Gonzales (No. 2) that his trial counsel ought to have cross-examined on Mr Wuhrer's evidence. It was also the foundation for his contention in Gonzales (No. 4) that Dr Maynard's evidence was one of two primary aspects of the Crown's case which were 'equivocal' in nature. 59. If the Court does go on to consider the ground substantively, the Attorney's position is that the contentions now made do not give rise to an appearance of a doubt or question as to either Dr Maynard's evidence or Mr Gonzales' guilt for the following reasons. 60. First, the question posed by s 79(2) is whether there appears to be a doubt or question as to Mr Gonzales' guilt. Mr Gonzales' assertions as to the reasoning of McCallum J in considering a previous application do not logically bear on that question (though, if they had merit, might be relevant to whether it could be said the issue had previously been dealt with). Regardless of whether her Honour's summary of Mr Wuhrer's analysis at [92] is accepted as correct or not, it remains the case that Mr Wuhrer's analysis was 'preliminary' in nature, that he identified both similarities and differences in what he examined, and that his findings were expressed as being subject to necessary further analysis. 61. Second, it is not accurate to say that Mr Waight's analysis confirmed or supported Mr Wuhrer's findings. Mr Waight was unable to obtain sufficient material from the jumper fibres to undertake any characterisation of the material. The reference in his report to 'no paint resembling the [blue spray paint]' being found on 'any other item' (being what is relied on as confirming Mr Wuhrer's analysis), needs to be assessed in light of his inability to characterise material on the jumper fibres, as well as his caveat that 'no conclusions regarding the relevance' of his results could be reached. 62. Third, the material referenced in the present application from Susan Swapp and the BBC as to SEM (the methodology used by Mr Wuhrer) does not take matters any further, or allow any proper assessment to be made of the comparative strengths of different technologies at the relevant point in time. In any case, Mr Wuhrer's examination was, as above, expressly 'preliminary' and subject to further analysis, regardless of the technology used. 63. Finally, once Mr Waight and Mr Wuhrer's findings are accurately stated, it is apparent that they do not cast doubt upon Dr Maynard's analysis. His findings involved the use of different methodologies aimed at comparing chemical composition and colour, one of which was (on his unchallenged evidence at the trial) an extremely sensitive method to that end. Where Mr Wuhrer's early, preliminary analysis using another method showed 'similarities and differences' in what he compared and Mr Waight's analysis yielded no useable results, Dr Maynard was able to say that on the methods he used, the graffiti paint on the jumper was indistinguishable from that at the crime scene." 1. Counsel for Mr Gonzales addressed the jury on this issue at the trial in these terms: "By the way, if he's spraying the wall what clothes is he supposed to have got on? I thought he was killing in the tracksuit or tracksuits. Or maybe after he gets up to the wheelie bin or the dust bin up the road, which apparently one would expect the police to have searched in the district, after he gets up there, takes off his clothes, does he get changed in the street, does he get changed in a motor vehicle? Does he then come back, after he's changed, and then go and get some spray paint or whatever and get it on his jumper? Well how does he do it, ladies and gentlemen? Apparently this is overwhelming. Overwhelming. Let's then move on to another sheer coincidence about the paint. What is the expert actually saying? You remember the precise words used by the Crown: Indistinguishable the contents, et cetera. Indistinguishable. Does that mean that the paint on the sleeve of the jumper is the paint that's on the wall? You might have thought that that's what the Crown case was. You might have thought, after listening to the submissions, that they're saying that's it, it's another sheer coincidence. Are they saying that the paint on the jumper is from the batch that's sprayed on the wall? And the answer's no, they can't. It's blue paint. And then again – I won't labour the point – not exactly unique. And the expert took you through the most popular brands. And, ladies and gentlemen, again you don't have to be a chemist to work out that there is nothing magic in being able to say that that paint had the same constituent parts as some other spray paint, cause they all do. What's the magic in that? Is there some uniqueness about it and apparently it's of a certain brand blue spray paint. Then when the accused gave an explanation about the paint the Crown says you've never mentioned this before. It's about four answers down his interview. He told it to the police years ago. It wasn't a made up lie in the witness box. It was a fact that he'd told the police before." 1. McCallum J was asked to consider an issue concerning alleged differences in the paint in Gonzales (No 2) in the context of a complaint that his counsel at trial negligently failed to cross-examine Detectives Elliot and Gibbs. Her Honour said this: "Differences in paint [88] Part of the Crown case against the applicant was evidence that the colour and chemical composition of the spray paint used to paint the message 'Fuck off Asians KKK' on a wall in the Gonzales family home was indistinguishable from the colour and chemical composition of a spot of paint found on the sleeve of the jumper the applicant was wearing when police responded to his triple-0 call (referred to by the trial judge in the summing-up at p 40). [89] At par 66 of the applicant's written submissions dated 8 August 2018 he submits: 'In his statement, Detective Elliott stated that on 30 July 2001, in company with Detective Gibbs, Detective Elliott and Analyst Richard Wuhrer of the Microstructural Analysis Unit at the University of Technology, Sydney, conducted an Environmental Scanning Electron Microscope examination of the microscopic paint particles found on the jumper fibres. An elemental analysis of the jumper fibres was compared to an elemental analysis of the graffiti, and the examination showed a number of similarities and differences in the elements present in the jumper fibres and the graffiti [paint].' [90] The applicant submits that his defence counsel was incompetent in failing to cross-examine Detectives Elliot and Gibbs in relation to the 'number of differences that were identified between the paint allegedly found on the applicant's jumper and paint in the graffiti' (par 67). The applicant noted that Mr Wuhrer was not called as a witness at the trial and he was not aware of any statement from Mr Wuhrer being served in the brief of evidence. [91] The applicant submits that evidence distinguishing between the two paints would cast doubt on that aspect of the Crown case (par 68). He further submits that, having failed to cross-examine those witnesses, counsel compounded his failure by 'giving prominence to the issue' in his closing address (par 69). [92] There does not appear to be any substance in this complaint. As submitted by the Attorney General, it appears to be founded on a misreading of Detective Elliot's statement, which referred to 'similarities and differences in the elements present in the jumper fibres and the blue graffiti paint'. It was not a comparison of paint with paint but rather of paint with paint-stained jumper fibres (Attorney General's written submissions dated 10 September 2018 at par 34(a)). Detective Elliott added: 'At the completion of the examination it was determined that more specific, confirmatory forensic analysis was required'. [93] The further analysis was conducted by Dr Phillip Maynard, a forensic scientist and expert in chemical analysis and trace evidence, who was called at trial by the Crown to give expert evidence on the subject. He gave evidence about the sensitivity of the two techniques used to analyse colour and chemical composition (Tcpt, 21 April 2004, pp 558-559). This analysis revealed the two samples to be 'indistinguishable' in colour and chemical composition (Tcpt, 21 April 2004, p 559-560). [94] Any cross-examination of Detective Elliot or Detective Gibbs as to the 'similarities and differences' found in their analysis would have run the risk of highlighting the strength of Dr Maynard's expert evidence that, on further analysis, the colour and composition of the samples were 'indistinguishable'. I am not persuaded that there is any merit in this complaint." 1. Reference to Dr Waight appears in the decision of Lonergan J in Gonzales (No 4): "[17] The second report referred to by the applicant is a one-page report dated 17 November 2021 of John Franceschini, a chemist. The report is elliptical and does not sufficiently explain the basis upon which the author agreed to the question posed: 'Would you agree that Mr Waight's conclusion on page 6 of his report is that no paint resembling the graffiti paint was found on the jumper?' [18] Even if I am wrong about that, and the report is a sufficient basis to express the view that it does, as submitted by the Attorney, this report adds nothing of evidentiary value. … [30] The chemical analysis that Dr Maynard conducted on the jumper, the wall and the spray paint he described as 'extremely sensitive and capable of accurate analysis on very, very small samples.'" 1. It will be evident that Mr Gonzales wishes to contend that the evidence before the jury did not conclusively establish that the paint found on the sleeve of his jumper was the very same paint used to write the graffiti on the wall of the house. Not only has he sought on a previous occasion to contend that the paint on the sleeve was planted there by the police, but he has also consistently maintained that chemical or physical analysis and inspection rises no higher than that the samples are indistinguishable. The evidence of Dr Maynard at trial appears clearly to have supported at least that conclusion: "Q. Could you see it yourself on the jumper? A. It wasn't very clear, not by visual inspection. Not until I looked at it with the microscope. Q. When you looked at it with a microscope, could you clearly see the blue area? A. Yeah there were blue patches on the surface of a lot of the fibres in that area. Q. Was the first process that you applied to both blue on the wall and the blue on the jumper a process which is called microspectrophotometry? A. That's correct. Q. Is that a process, or a method of analysis which is a very precise scientific method of determining colour? A. Microspectrophotometry measures colour, and a microspectrophotometer is an instrument to measure colour attached to a microscope for small samples. Q. How sensitive is that process? A. It's extremely sensitive. You're able to get accurate colour analysis on very, very small samples. Q. Was the second test that you used an analysis method known as Raman microspectroscopy? A. That's correct. Q. And what does that enable you to do? A. It allows you to look at the chemical constituents of a sample. … Q. Now did you use those two methods to compare the blue smears on the jumper with the blue paint on the gyprock? A. Yes that's correct. Q. And when you analysed the jumper did you do it directly on the jumper or did you use some fibres taken from the jumper? A. I took three fibres off the jumper, mounted them onto microscope slides and examined them that way. Q. Firstly, so far as the first test was concerned, microspectrophotometry, which tests for colour, what do you say about the colour on the jumper versus the colour on the writing on the wall? A. Those two samples were indistinguishable by colour. Q. Indistinguishable? A. Yes. Q. Does that mean they were identical? A. Yes. As far as that technique is concerned. Q. So far as Raman microspectroscopy is concerned, which examines chemical compositions, what did you find when you compared the fibres from the jumper with the blue writing on the wall? A. Those two samples were indistinguishable. Q. Does that mean again that they were identical? A. Yes. Q. Does that indicate to you that in terms of both colour and composition, the blue from the jumper and the blue from the writing on the wall were identical? A. Yes." 1. Nor did Mr Gonzales' counsel at trial seek in cross-examination of Dr Maynard to displace that possibility. It was limited in its entirety to the following nine questions: "TERRACINI: Q. How long has the paint been there? A. I can't tell that. Q. Can you tell how it got there? A. No I can't. Q. Were you shown any other items around this home which had been spray painted? A. No, only the wall sample. Q. Weren't shown anything else? A. Ah, the third item that I received was a small quantity of blue coloured wood chips. Q. They're different to the blue on the sleeve? A. Yes. I examined them by microspectrophotometry as well, and they were different. Q. Are they like demonstrably different, or are they still bluish in colour, or what? A. They are blue, but they were easily distinguishable. Q. I'm not talking about under a microscope, but by ordinary macroscopic inspection, did they look blue? A. By eye they looked blue, yes. Q. And the studies that you made about spray paint, assume that it is spray paint somewhere on this jumper, can you get it when you rub your arm, or anything like that, up against an object that has got spray paint on it? A. It's possible. Spray paint dries very quickly. Q. But lasts for an hour or so? A. Yes about an hour before it sets." 1. It is trite to observe that the jury were not required to be certain that the paint on the wall and the paint on the sleeve of the jumper were the same. The true status of the paint on the sleeve was but one piece of circumstantial evidence to be considered along with all other pieces of circumstantial evidence in the trial: it was not an indispensable, intermediate aspect of the Crown's circumstantial case that had to be established beyond reasonable doubt before Mr Gonzales could be convicted. For example, the jury may have considered that "indistinguishable" was an inadequate description for them to be satisfied that the paint on the sleeve and the paint on the wall were the same. In the same context, however, it was open to the jury to have been satisfied that whosoever committed the three murders also painted the graffiti on the wall, whatever view they may have formed about whether the paint on the wall and on the jumper were the same. The Crown's circumstantial case had to be considered as a whole and not in a piecemeal fashion. 2. All of the evidence touching this issue to which Mr Gonzales draws attention had been obtained and was available to be used at his trial. No issue arises now that was not also an issue for consideration then. The same issue has received attention in previous applications to this Court. It is not correct, as Mr Gonzales contends, that the so-called evidence is new evidence or that the jury and the trial judge were deprived of an opportunity to consider the whole of the evidence.

The clean-up/disposal evidence issue 1. The burden of Mr Gonzales' assertion in support of this issue is that there was an absence of forensic evidence in the Crown case that he had cleaned himself up or disposed of evidence, which he argues necessarily gives rise to a doubt or question as to his guilt. This submission takes strength from the way in which the Crown case proceeded at trial. However, to understand the conclusion to which I have come on this issue, it is necessary to refer to Mr Gonzales' submissions on this application and to compare them with the previous consideration given to the forensic evidence by Adamson J in Gonzales (No 1) and McCallum J in Gonzales (No 2). 2. Mr Gonzales submitted that, according to the Crown's expert, Professor Hilton, the Gonzales family killings were "quite markedly bloody affairs" and due to the nature of the injuries sustained by the deceased, the quantity and distribution of shed blood would indicate a strong likelihood of a substantial transfer of blood from the victims to the murderer's skin or clothing. That issue is not controversial: the Attorney has accepted in terms for the purposes of this application and otherwise more generally that there was a likelihood of blood transfer between the victims and the murderer. As McCallum J observed in Gonzales (No 2), that proposition arose from the nature of the murders and the crime scene, regardless of the further evidence of Professor Hilton. 3. However, multiple witnesses observed Mr Gonzales in the immediate post event period and saw no blood on his skin or clothing. It therefore became the Crown case that Mr Gonzales would have had to clean or wash up a substantial amount of blood after the murders for him to have been the perpetrator. The Crown accepted that the limited timeframe within which Mr Gonzales could have done so and also disposed of a large amount of evidence at some location far removed from the house was about one hour. 4. Mr Gonzales submitted that if he were the murderer, the washing of blood could only have occurred at the house because, according to the Crown case, he changed his clothes after each murder to avoid alarming the next victim by reason of his bloodied appearance. Mr Gonzales submitted that it was implicit in the Crown case that this would include the need to wash his skin. This could only have happened at the house because the Crown case was that Mr Gonzales remained there following each murder. The Crown case also disclosed that no blood was found in any of the family's vehicles, suggesting that Mr Gonzales did not drive to another location to clean up. 5. Mr Gonzales submitted that there was "absolutely" no evidence that he washed up blood or disposed of evidence. Submissions to this effect were robustly presented to the jury by his counsel at trial, arguing that if Mr Gonzales had undertaken such comprehensive tasks within a limited timeframe, the police would have uncovered evidence of this fact. 6. The Attorney accepts that the Crown's case theory required that some steps must have been taken by Mr Gonzales to either clean himself or dispose of evidence and clothing or both or to do some combination of these things so that his appearance was unremarkable when he met his friend Sam Dacillo, noting as well that the murder weapons were not located. The Attorney has argued that it does not follow that the Crown was required to prove that he had done so for the jury to convict him. 7. However, the Attorney's response to the present application is that Mr Gonzales' submissions on this point have all been raised before and do not raise any new matters. In one sense, so much is apparent from Mr Gonzales' extensively footnoted references in his written submission to what McCallum J had to say in Gonzales (No 2). These references were to some of the following paragraphs: "Ground 1: an indispensable, intermediate fact in the circumstantial case? [28] The applicant seeks review of his convictions on four grounds. The first is: 'An indispensable, intermediate aspect of the Crown's circumstantial case has not been established beyond reasonable doubt.' [29] Some explanation of this ground is required. It is obvious from the evidence concerning the injuries sustained by the three victims that the person who committed the murders could not have done so without coming into contact with significant amounts of blood. It is doubtful whether expert evidence was needed to establish that proposition but it was nevertheless provided in the new material relied upon by the applicant to support the previous Part 7 application, being the reports of Professor Hilton considered by Adamson J in the passages set out above. [30] Professor Hilton is a medical practitioner practising principally as a forensic pathologist and consultant in forensic medicine. He provided reports dated 22 February 2011 and 10 July 2012. In his first report, he stated that the nature of the injuries suffered by the victims 'would indicate a high level of probability of contamination of the person and clothing of the assailant(s) by the victims' blood' and that 'the clothing worn by the assailant(s) would be expected to show fairly extensive blood staining'. He concluded that 'the quantity and distribution of shed blood would indicate a strong likelihood of the assailant(s) person and/or clothing being contaminated with that blood.' In his second report he reiterated that the Gonzales family killings were 'quite markedly bloody affairs' and said that he would expect there to have been a substantial transfer of blood from the victims to the assailant or assailants. [31] A number of people saw the applicant on the night in question after the time when, according to the Crown case, the murders had been committed, including his friend Sam Dacillo (who he had agreed to meet at 8.00pm) and, later, ambulance officers and police who attended the scene after the applicant called triple-0. None of those people noticed any blood on the applicant or his clothes. It follows that, if the applicant committed the murders, he must have cleaned up and changed clothes afterwards, before meeting Sam Dacillo. Indeed, based on something the applicant later told police (that three pairs of his tracksuit pants had gone missing from the house), the Crown invited the jury to infer that the applicant changed tracksuit pants after each murder, presumably so as to avoid alarming each next victim by his bloodied appearance (see for example closing address at Tcpt, 13 May 2004, p 1377(35)-(37)). Shepherd [32] The applicant makes a number of points about this aspect of the Crown case. The first is based on the principles stated in Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56. For the purpose of this discussion, it is convenient to refer to the acts in question (cleaning up, changing clothes and disposing of weapons and bloodied clothing and other items) as the clean-up. The applicant submits that the clean-up was an indispensable, intermediate aspect of the Crown's circumstantial case which was accordingly required to be proved beyond reasonable doubt. He further submits that the trial judge ought to have given a Shepherd direction in respect of the clean-up aspect of the case. [33] I do not accept that analysis. As explained in Shepherd, circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. If the basic fact is indispensable to an inference of guilt, it must be proved beyond reasonable doubt and a Shepherd direction is required. The applicant's argument inverts that logic and does not reflect the Crown case. [34] The Crown did not set out to prove, as a basic fact, that the applicant did the clean-up and invite the jury to draw an inference, from that fact, that the applicant committed the murders. [35] Far from being a basic fact forming part of the circumstantial case against the applicant, the absence of any direct evidence of the clean-up was a matter that detracted from the Crown case and on which some emphasis was placed by counsel for the applicant at trial. The Crown prosecutor grappled with the lack of evidence on that issue, as he had to, by inviting the jury to accept that, immediately after committing the three murders, the applicant must have cleaned himself up, changed his clothes and disposed of a number of items including the kitchen knives, the baseball bat, three sets of blood-stained clothing and blood-stained shoes before travelling to meet Sam Dacillo. In accordance with the evidence as to the timing of the three murders, it was accepted by the Crown that the applicant would have had to do all of those things within the space of approximately an hour. [36] The applicant relied on three passages from the Crown's closing address directed to that issue. The first was when the Crown was addressing the jury as to the case that had been put forward by the applicant in his evidence. It is helpful to explain that the applicant had given evidence that, when he arrived home, he heard the side gate slamming shut and he chased after a person he assumed was the person who had murdered his family. The whole of the relevant passage from the Crown's closing address is set out below (Tcpt, 13 May 2004, pp 1377-1378. 'Now ladies and gentlemen, somebody killed Clodine at 4.30 or thereabouts, waited an hour, killed Mary at 5.30, or thereabouts, waited an hour and a quarter to an hour and a half till about quarter to 7 or so, waited patiently, waited whilst Emily Luna rang the front doorbell for five minutes. Just stood there in front of the door, waited patiently, all that time until about quarter to 7 when Teddy arrived home, killed Teddy, and then remained at the place. If the accused's story is to be believed, waited and waited and waited and waited from quarter to 7 or so when Teddy was killed, until quarter to 12 when the accused arrived home, this is a killer with real nerves of steel. Having slaughtered three people just remains there waiting for young Sef to get home. Then what happens when Sef gets home, according to his version, he's bending over his father, no no, that is not the right time to attack him, he's bending over his mother, no no, that's not the right time to attack him, he goes up to his sister and bends over his sister, no that is not the right time to attack him. He comes downstairs and that is when they decide, oh we're out of here. Just to make it a little bit easier for Sef to chase after them, let's close the side gate making a bit of noise so that he knows that we're leaving so that he can run out after us. I mean ladies and gentlemen, it only has to being stated to show how preposterous it is. That is not what happened at all. What happened was the that the accused killed his sister, the accused then waited an hour to kill his mother, the accused then waited an hour and a quarter or so to kill his father, and then he cleaned up himself, got rid of the clothes that he'd used, which was his father's 'Human' brand sports shoes, his three track suits, one for Clodine, one for Mary, one for Teddy, just in case they turned around and saw him and got alarmed and ran away. The knives from the kitchen, the glove or gloves from the back garden. He then disposed of all of those items and the bat between about quarter to seven, when Teddy died, and quarter to eight. So he had plenty of time to get rid of all that stuff.' [37] The Crown returned to the issue later, in the context of addressing evidence concerning a paint stain on the applicant's jumper (which was said to match the paint used to spray the anti-Asian message on the wall). Again, for context, it is helpful to explain that the applicant had given evidence that when he arrived home, he hugged all three members of his family and tried to revive them (Tcpt, 12 May 2004, p 1274(40)-(57)). The Crown said (Tcpt, 13 May 2004, p 1390(46)-(53)): 'Quite a coincidence that he had that very jumper on that night. The amount of blood on him, it's impossible that he did what he claims to have done and got that little blood on him. He has obviously killed the three members of his family with other clothes on or at least over the top. He has disposed of those clothes and then when he has gone in with his neighbour Shane he has got a little bit of blood on him. If you look at the evidence he has got about the same amount of blood on him as Shane does.' [38] Finally, at Tcpt , 13 May 2008, p 1398(16), the Crown said: 'Finally, ladies and gentlemen, we say that you would conclude overall the accused killed his father, mother and sister over the course of two and a half hours. He cleaned up for the next hour or so and then went out with Sam Dacillo, perhaps thinking that he was giving himself a sort of alibi.' [39] Having regard to those aspects of the Crown's closing address, it may be accepted that it was an aspect of the Crown case that the clean-up occurred. [40] Counsel for the applicant at trial made good use of the absence of evidence on that issue, arguing that, if the applicant had disposed of items of the kind suggested within such a short time frame that evening, they would have been found by police. The argument rested on an expectation that police would have conducted a thorough search of all possible clean-up and disposal sites. However, there was no evidence in the trial that they had in fact undertaken that kind of comprehensive search. [41] Mr Terracini, who appeared for the applicant at the trial, put submission as follows in his closing address to the jury at Tcpt, 17 May 2004, p 1428(6)-(31): 'If we return then to the submission that I put to you on Friday, how then and by what means does he dispose of apparently the clothing, the weapons or weapon, et cetera? Or indeed the paint, et cetera? Now, is it suggested that he does it before his father comes home? It is hardly likely. See, he only has this window of opportunity to clean up as it were and dispose of the gear that the Crown says he must be wearing. Now, again, there is no evidence that any of that gear has been found or located. There is no evidence that one would expect, or one wouldn't expect, that the police would search high and low round at least the close area of the house and up to the corner, or even as far as shopping centres, et cetera. Drains, garbage bins. That accords with common sense. One wouldn't expect the police to be searching, for instance, everything all the way to Chatswood or something, and that we say is quite an important point. Because the longer he's away travelling to dispose of the murder clothes, et cetera, the more time it takes, the more opportunity for observation, the more opportunity for somebody to remember that they saw a vehicle of that type rego, of that type car, of that description. Not a word.' [42] The trial judge's summing-up included reference to that submission as to the expectation that police would have searched the near neighbourhood thoroughly and that nothing was found. His Honour added that if the accused had disposed of the items, he would have 'had to have travelled away from the near vicinity of the house…with a great likelihood of someone observing him' (Tcpt, 19 May 2004, p 166). However, as explained by the Attorney General in his written submissions in the present application, there was in fact no evidence that a comprehensive search of the kind suggested had been carried out. The submission was based on the supposed expectation as to what police would have done. [43] If there was incontrovertible proof that the applicant could not have undertaken the clean-up, there would be a doubt as to his guilt. It does not follow that the clean-up was an indispensable, intermediate step in the reasoning process towards an inference of guilt. The absence of evidence of any clean-up or disposal of items was simply part of the matrix of the Crown's circumstantial case. [44] The trial judge gave the usual direction about drawing inferences in a circumstantial case, including the following: 'Before you could find the accused guilty on any charge on the basis of circumstantial evidence you must first determine which of the circumstances sought to be relied upon by the Crown have been proved to your satisfaction. You must then determine whether, having regard to all of the evidence and having regard to the submissions made by counsel, the only reasonable explanation of the circumstances you find proved, the only inference which can be drawn beyond reasonable doubt, is that it was the accused who did the acts causing the death of the victim. If there is any other reasonable explanation of those circumstances consistent with the innocence of the accused you could not find the accused guilty.' (Summing-up at p 34). [45] A Shepherd direction concerning the clean-up was not required and indeed would have been misconceived." 1. Whether Mr Gonzales' contentions are framed as a failure by the trial judge to give a Shepherd direction, or as a failure by the Crown at trial to prove that he had cleaned himself up at the house and disposed of evidence in a particular timeframe or some other combination of these related concepts, they have all been raised by him in previous applications and dealt with in a thorough and reasoned way. As the Attorney has pointed out in his submissions in this application, the related contention that Adamson J had made an exculpatory factual finding in Gonzales (No 1) excluding "all possibility of the applicant cleaning-up or disposing of evidence" was also considered by McCallum J in Gonzales (No 2). Her Honour reasoned, rightly in the Attorney's submission, that Adamson J had not done so, and could not have done so. 2. In this last respect, Mr Gonzales points once again to the statement of DSC Elliot whose evidence at trial included the following: "[7] At 7.30pm that evening I conducted a luminol examination inside the premises. (Luminol makes blood photoluminesce or glow in darkness for a short period of time. It is a liquid chemical that is sprayed directly onto surfaces). I examined the ground floor bathroom handbasin, laundry tubs and kitchen sink surfaces and saw no photoluminescence, characteristic of the presence of blood on those surfaces. I also examined the 1st floor bathroom shower and handbasins and saw no photoluminescence on those surfaces." 1. Mr Gonzales contended that this statement was capable of establishing that "all possible" sites at which he might have disposed of evidence or otherwise removed blood from himself were investigated. However, the statement only related to an investigation of the crime scene. It did not, as the Attorney has emphasised, necessarily flow from the Crown case, as Mr Gonzales submits, that any clean-up could only have occurred within the home. 2. As the Attorney has also pointed out, the more general issue central to Mr Gonzales' contentions is that there was an absence of forensic evidence in the Crown case and an absence of evidence that he cleaned up or disposed of evidence, which he argues necessarily gives rise to a doubt or question as to his guilt. However, that contention was dealt with by Adamson J in Gonzales (No 1). It was also considered in Gonzales (No 2) in more than one context. It was also ventilated in the trial itself in that the absence of such evidence was emphasised by Mr Gonzales' counsel on his behalf. For example: "If we return then to the submission that I put to you on Friday, how then and by what means does he dispose of apparently the clothing, the weapons or weapon, et cetera? Or indeed the paint, et cetera? Now, is it suggested that he does it before his father comes home? It is hardly likely. See, he only has this window of opportunity to clean up as it were and dispose of the gear that the Crown says he must be wearing. Now, again, there is no evidence of that gear has been found or located. There is no evidence that one would expect, or one wouldn't expect, that the police would search high and low round at least the close area of the house and up to the corner, or even as far as shopping centres, et cetera. Drains, garbage bins. That accords with common sense. One wouldn't expect the police to be searching, for instance, everything all the way to Chatswood or something, and that we say is quite an important point. Because the longer he's away travelling to dispose of the murder clothes, et cetera, the more time it takes, the more opportunity for observation, the more opportunity for somebody to remember that they saw a vehicle of that type rego, of that type car, of that description. Not a word." 1. Finally, the Attorney made the following submissions: "71. If the Court proceeds to consider the applicant's contentions substantively, the Attorney's position is that they do not give rise to an appearance of a doubt or question as to his guilt. The position at trial, favourable to the applicant, was that there was an absence of any forensic evidence against him. DSC Elliott's evidence at [7] potentially advanced that position to a very limited extent in relation to the crime scene itself. It did not exclude the possibility, however, that the applicant took steps to clean up, and/or dispose of evidence in some way, at some other location (if not at the crime scene itself). As Adamson J concluded in Gonzales (No. 1), there was a window of opportunity for the applicant to do so before meeting Mr Dacillo, and there was evidence that the applicant had, when told that the police had discovered relevant evidence, reported for the first time that he was missing three tracksuits. 72. The absence of forensic evidence or clean-up/disposal evidence would have been plain to the jury, who nonetheless convicted the applicant. As against it was an otherwise strong circumstantial case which included evidence that the applicant had the opportunity to commit the murders, evidence that various items from within the home were missing and were consistent with the injuries inflicted on the victims, evidence that that applicant had previously poisoned his mother and evidence that the applicant gave two false alibis (one of which he admitted was false). That context should be taken into account in assessing whether the matters raised give rise to the appearance of doubt or question as to the applicant's guilt." 1. In whatever way one analyses Mr Gonzales' contentions dealing with this issue, it is plain that his arguments have all previously been considered and dealt with comprehensively. I am unable to detect any variation of the way he seeks to address this issue that amounts to a new or fresh argument or that raises some as yet unassessed proposition to which further attention could or ought profitably be directed.

Conclusion 1. The issues that Mr Gonzales seeks to agitate have been exhaustively explored and examined and re-examined in detail previously. They have been fully dealt with in one form or another in the proceedings giving rise to the convictions or in proceedings on appeal from those convictions or have previously been dealt with under one or more of Mr Gonzales' earlier applications under Part 7 of the Act. I am not satisfied that there are special facts or special circumstances that justify the taking of further action: s 79(3) of the Act.

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